CASES 


ADMINISTRATIVE  LAW 


SELECTED  FROM  DECISIONS  OF 


ENGLISH  AND  AMERICAN  COURTS 


BY 

ERNST  FREUND 

PROFESSOR  OF  LAW  IN  THE  UNIVERSITY  OF  CHICAGO 


AMERICAN  CASEBOOK  SERIES 
JAMES  BROWN  SCOTT 

GENERAL   EDITpR 


ST.    PAUL 

WEST  PUBLISHING  COMPANY 
1911 


1^% 


a&^ 


Copyright,  1911 

BY 

WEST  PUBLISHING  COMPANY 

(Fr.  A  DM.  Law) 


THE  AMERICAN  CASEBOOK 
SERIES 


For  years  past  the  science  of  law  has  been  taught  by  lectures,  the 
use  of  text-books  and  more  recently  by  the  detailed  study,  in  the 
class-room,  of  selected  cases. 

Each  method  has  its  advocates,  but  it  is  generally  agreed  that  the 
lecture  system  should  be  discarded  because  in  it  the  lecturer  does 
the  work  and  the  student  is  either  a,  willing  receptacle  or  offers  a 
passive  resistance.  It  is  not  too  much  to  say  that  the  lecture  system 
is  doomed. 

Instruction  by  the  means  of  text-books  as  a  supplement  or  sub- 
stitute for  the  formal  lecture  has  made  its  formal  entry  into  the  educa- 
tional world  and  obtains  widely ;  but  the  system  is  faulty  and  must  pass 
away  as  the  exclusive  means  of  studying  and  teaching  law.  It  is  an 
improvement  on  the  formal  lecture  in  that  the  student  works,  but  if  it 
cannot  be  said  that  he  works  to  no  purpose,  it  is  a  fact  that  he  works 
from  the  wrong  end.  The  rule  is  learned  without  the  reason,  or  both 
rule  and  reason  are  stated  in  the  abstract  as  the  resultant  rather  than 
as  the  process.  If  we  forget  the  rule  we  cannot  solve  the  problem ;  if 
we  have  learned  to  solve  the  problem  it  is  a  simple  matter  to  formulate 
a  rule  of  our  own.  The  text-book  method  may  strengthen  the  mem- 
ory; it  may  not  train  the  mind,  nor  does  it  necessarily  strengthen  it. 
A  text,  if  it  be  short,  is  at  best  a  summary,  and  a  summary  presup- 
poses previous  knowledge. 

If,  however,  law  be  considered  as  a  science  rather  than  a  collection 
of  arbitrary  rules  and  regulations,  it  follows  that  it  should  be  studied 
as  a  science.  Thus  to  state  the  problem  is  to  solve  it;  the  laboratory 
method  has  displaced  the  lecture,  and  the  text  yields  to  the  actual 
experiment.  The  law  reports  are  in  more  senses  than  one  books  of 
experiments,  and,  by  studying  the  actual  case,  the  student  co-operates 
with  the  judge  and  works  out  the  conclusion  however  complicated 
the  facts  or  the  principles  involved.  A  study  of  cases  arranged  his- 
torically develops  the  knowledge  of  the  law,  and  each  case  is  seen  to 
be  not  an  isolated  fact  but  a  necessary  link  in  the  chain  of  develop- 
ment. The  study  of  the  case  is  clearly  the  most  practical  method, 
for  the  student  already  does  in  his  undergraduate  days  what  he  must 
do  all  his  life;  it  is  curiously  the  most  theoretical  and  the  most  prac- 
tical. For  a  discussion  of  the  case  in  all  its  parts  develops  analysis, 
the  comparison  of  many  cases  establishes  a  general  principle,  and 

(iii) 


-44/ 


8437 


the  arrangement  and  classification  of  principles  dealing  with  a  sub- 
ject make  the  law  on  that  subject. 

In  this  way  training  and  knowledge,  the  means  and  the  end  of 
legal  study,  go  hand  and  hand. 

The  obvious  advantages  of  the  study  of  law  by  means  of  selected 
cases  make  its  universal  adoption  a  mere  question  of  time. 

The  only  serious  objections  made  to  the  case  method  are  that  it  takes 
too  much  time  to  give  a  student  the  requisite  knowledge  of  the  sub- 
ject in  this  way  and  that  the  system  loses  sight  of  the  difference  be- 
tween the  preparation  of  the  student  and  the  lifelong  training  of  the 
lawyer.  jVIany  collections  of  cases  seem  open  to  these  objections, 
for  they  are  so  bulky  that  it  is  impossible  to  cover  a  particular  sub- 
ject with  them  in  the  time  ordinarily  allotted  to  it  in  the  class.  In 
this  way  the  student  discusses  only  a  part  of  a  subject.  His  knowl- 
edge is  thorough  as  far  as  it  goes,  but  it  is  incomplete  and  frag- 
mentary. The  knowledge  of  the  subject  as  a  whole  is  deliberately 
sacrificed  to  training  in  a  part  of  the  subject. 

It  would  seem  axiomatic  that  the  size  of  the  casebook  should  cor- 
respond in  general  to  the  amount  of  time  at  the  disposal  of  instructor 
and  student.  As  the  time  element  is,  in  most  cases,  a  nonexpansive 
quantity,  it  necessarily  follows  that,  if  only  a  half  to  two-thirds  of  the 
cases  in  the  present  collections  can  be  discussed  in  class,  the  pres- 
ent casebooks  are  a  third  to  a  half  too  long.  From  a  purely  practical 
and  economic  standpoint  it  is  a  mistake  to  ask  students  to  pay  for 
1,200  pages  when  they  can  only  use  600,  and  it  must  be  remembered 
that  in  many  schools,  and  with  many  students  in  all  schools,  the  mat- 
ter of  the  cost  of  casebooks  is  important.  Therefore,  for  purely 
practical  reasons,  it  is  believed  that  there  is  a  demand  for  casebooks 
physically  adapted  and  intended  for  use  as  a  whole  in  the  class-room. 

But  aside  from  this,  as  has  been  said,  the  existing  plan  sacrifices 
knowledge  to  training.  It  is  not  denied  that  training  is  important, 
nor  that  for  a  law  student,  considering  the  small  amount  of  actual 
knowledge  the  school  can  hope  to  give  him  in  comparison  with  the 
vast  and  daily  growing  body  of  the  law,  it  is  more  important  than 
mere  knowledge.  It  is,  however,  confidently  asserted  that  knowledge 
is,  after  all,  not  unimportant,  and  that,  in  the  inevitable  compromise 
between  training  and  knowledge,  the  present  casebooks  not  only  de- 
vote too  little  attention  relatively  to  the  inculcation  of  knowledge, 
but  that  they  sacrifice  unnecessarily  knowledge  to  training.  It  is  be- 
lieved that  a  greater  effort  should  be  made  to  cover  the  general  prin- 
ciples of  a  given  subject  in  the  time  allotted,  even  at  the  expense  of 
a  considerable  sacrifice  of  detail.  But  in  this  proposed  readjustment 
of  the  means  to  the  end,  the  fundamental  fact  cannot  be  overlooked 
that  law  is  a  developing  science  and  that  its  present  can  only  be  un- 
derstood through  the  medium  of  its  past.  It  is  recognized  as  im- 
perative that  a  sufficient  number  of  cases  be  given  under  each  topic 


PREFACE.  V 

treated  to  afford  a  basis  for  comparison  and  discrimination ;  to  show 
the  development  of  the  law  of  the  particular  topic  under  discussion; 
and  to  afford  the  mental  training  for  which  the  case  system  neces- 
sarily stands.  To  take  a  familiar  illustration:  If  it  is  proposed  to 
include  in  a  casebook  on  Criminal  Law  one  case  on  abortion,  one  on 
libel,  two  on  perjury,  one  on  larceny  from  an  office,  and  if  in  order  to 
do  this  it  is  necessary  to  limit  the  number  of  cases  on  specific  intent  to 
such  a  degree  as  to  leave  too  few  on  this  topic  to  develop  it  fully 
and  to  furnish  the  student  with  training,  then  the  subjects  of  abor- 
tion, libel,  perjury,  and  larceny  from  an  office  should  be  wholly  omit- 
ted. The  student  must  needs  acquire  an  adequate  knowledge  of  these 
subjects,  but  the  training  already  had  in  the  underlying  principles  of 
criminal  law  will  render  the  acquisition  of  this  knowledge  compara- 
tively easy.  The  exercise  of  a  wise  discretion  would  treat  fundamen- 
tals thoroughly:  principle  should  not  yield  to  detail. 

Impressed  by  the  excellence  of  the  case  system  as  a  means  of  legal 
education,  but  convinced  that  no  satisfactory  adjustment  of  the  con- 
flict between  training  and  knowledge  under  existing  time  restrictions 
has  yet  been  found,  the  General  Editor  takes  pleasure  in  announcing 
a  series  of  scholarly  casebooks,  prepared  with  special  reference  to 
the  needs  and  limitations  of  the  class-room,  on  the  fundamental  sub- 
jects of  legal  education,  which,  through  a  judicious  rearrangement 
of  emphasis,  shall  provide  adequate  training  combined  with  a  thor- 
ough knowledge  of  the  general  principles  of  the  subject.  The  collec- 
tion will  develop  the  law  historically  and  scientifically;  English  cases 
will  give  the  origin  and  development  of  the  law  in  England ;  Ameri- 
can cases  will  trace  its  expansion  and  modification  in  America;  notes 
and  annotations  will  suggest  phases  omitted  in  the  printed  case. 
Cumulative  references  will  be  avoided,  for  the  footnote  may  not  hope 
to  rival  the  digest. 

The  law  will  thus  be  presented  as  an  organic  growth,  and  the  neces- 
sary connection  between  the  past  and  the  present  will  be  obvious. 

The  importance  and  difficulty  of  the  subject  as  well  as  the  time  that 
can  prpperly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. 

It  is  equally  obvious  that  some  subjects  are  treated  at  too  great 
length,  and  that  a  less  important  subject  demands  briefer  treatment. 
A  small  book  for  a  small  subject. 

In  this  way  it  will  be  alike  possible  for  teacher  and  class  to  com- 
plete each  book  instead  of  skimming  it  or  neglecting  whole  sections; 
and  more  subjects  may  be  elected  by  the  student  if  presented  in  short- 
er 'form  based  upon  the  relative  importance  of  the  subject  and  the 
time  allotted  to  its  mastery. 

Training  and  knowledge  go  hand  in  hand,  and  Training  and  Knowl- 
edge are  the  keynotes  of  the  series. 


VI  PREFACE. 

If  it  be  granted  that  all.  or  nearly  all,  the  studies  required  for  ad- 
mission to  the  bar  should  be  studied  in  course  by  every  student — and 
the  soundness  of  this  contention  can  hardly  be  seriously  doubted — it 
follows  necessarily  that  the  preparation  and  publication  of  collections 
of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine  and  by 
no  means  unimportant  service  to  the  cause  of  legal  education.  And 
this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief. 

For  the  basis  of  calculation  the  hour  has  been  taken  as  the  unit.  The 
General  Editor's  personal  experience,  supplemented  by  the  experience 
of  others  in  the  class-room,  leads  to  the  belief  that  approximately  a 
book  of  400  pages  may  be  covered  by  the  average  student  in  half  a 
year  of  two  hours  a  week ;  that  a  book  of  600  pages  may  be  discussed 
in  class  in  three  hours  for  half  a  year;  that  a  book  of  800  pages  may 
be  completed  by  the  student  in  two  hours  a  week  throughout  the  year ; 
and  a  class  may  reasonably  hope  to  master  a  volume  of  1,000  pages 
in  a  year  of  three  hours  a  week.  The  general  rule  will  be  subject  to 
some  modifications  in  connection  with  particular  topics  on  due  con- 
sideration of  their  relative  importance  and  difficulty,  and  the  time 
ordinarily  allotted  to  them  in  the  law  school  curriculum. 

The  following  subjects  are  deemed  essential  in  that  a  knowledge  of 
them  (with  the  exception  of  International  Law  and  General  Juris- 
prudence) is  universally  required  for  admission  to  the  bar: 

Administrative  Law.  Insurance. 

Agency.  International  Law. 

Bills  and  Notes.  Jurisprudence. 

Carriers.  Mortgages. 

Contracts.  Partnership. 

Corporations.  Personal  Property,  including 

Constitutional  Law.  the  Law  of  Bailment. 

Criminal  Law.  -n     i  -n  .      ( I'^t  "^'ear. 


Criminal  Procedure. 


Real  Propertv.  \  2d 

'      Ud 

Common-Law  Pleading.  Public  Corporations. 

Conflict  of  Laws.  Quasi  Contracts. 

Code  Pleading.  Sales. 

Damages.  Suretyship. 

Domestic  Relations.  Torts. 

Equity.  Trusts. 

Equity  Pleading.  Wills  and  Administration. 

Evidence. 

International  Law  is  included  in  the  list  of  essentials  from  its  in- 
trinsic importance  in  our  system  of  law.  As  its  principles  are  simple 
in  comparison  with  municipal  law,  as  their  application  is  less  technical, 


PREFACE.  Vll 

and  as  the  cases  are  generally  interesting,  it  is  thought  that  the  book 
may  be  larger  than  otherwise  would  be  the  case. 

As  an  introduction  to  the  series  a  book  of  Selections  on  General 
Jurisprudence  of  about  500  pages  is  deemed  essential  to  completeness. 

The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  class-room  and  the  needs  of  the  students  will  fur- 
nish a  sound  basis  of  selection. 

While  a  further  list  is  contemplated  of  usual  but  relatively  less  im- 
portant subjects  as  tested  by  the  requirements  for  admission  to  the 
bar,  no  announcement  of  them  is  made  at  present. 

The  following  gentlemen  of  standing  and  repute  in  the  profession 
are  at  present  actively  engaged  in  the  preparation  of  the  various  case- 
books on  the  indicated  subjects  : 

George  W.  Kirchwey,  Dean  of  the  Columbia  University,  School  of 
Law.    Subject,  Real  Property. 

Nathan  Abbott,  Professor  of  Law,  Columbia  University.  (Formerly 
Dean  of  the  Stanford  University  Law  School.)  Subject,  Per- 
sonal Property. 

Frank  Irvine,  Dean  of  the  Cornell  University  School  of  Law.  Sub- 
ject, Evidence. 

Harry  S.  Richards,  Dean  of  the  University  of  Wisconsin  School  of 
Law.    Subject,  Corporations. 

James  Parker  Hall,  Dean  of  the  University  of  Chicago  School  of  Law. 
Subject,  Constitutional  Lazv. 

William  R.  Vance,  Dean  of  the  George  Washington  University  Law 
School.    Subject,  Insurance. 

Charles  M.  Hepburn,  Professor  of  Law,  University  of  Indiana.  Sub- 
ject, Torts. 

William  E.  Mikell,  Professor  of  Law,  University  of  Pennsylvania. 
Subjects,  Criminal  Law  and  Criminal  Procedure. 

George  P.  Costigan,  Jr.,  Professor  of  Law,  Northwestern  University 
Law  School.    Subject,  Wills  and  Administration. 

Floyd  R.  Mechem,  Professor  of  Law,  Chicago  University.  Subject, 
Damages.     (Co-author  with  Barry  Gilbert.) 

Barry  Gilbert,  Professor  of  Law,  University  of  Illinois.  Subject, 
Damages.     (Co-author  with  Floyd  R.  Mechem.) 

Thaddeus  D.  Kenneson,  Professor  of  Law,  University  of  New  York. 
Subject,  Trusts. 

Charles  Thaddeus  Terry,  Professor  of  Law,  Columbia  L'^niversity. 
Subject,  Contracts. 


Vlil  PREFACE. 

Albert  AI.  Kales,  Professor  of  Law,  Northwestern  University.    Sub- 
ject, Persons. 

Edwin  C.  Goddard,  Professor  of  Law,  University  of  Michigan.    Sub- 
ject, Agency. 

Howard  L.  Smith,  Professor  of  Law,  University  of  Wisconsin.    Sub- 
ject, Bills  and  Notes.    (Co-author  with  Wm.  Underhill  Moore.) 

Wm.  Underhill  Moore,  Professor  of  Law,  University  of  Wisconsin. 
Subject,  Bills  and  Notes.    (Co-author  with  Howard  L.  Smith.) 

Edward  S.  Thurston,  Professor  of  Law,  George  Washington  Univer- 
sity,   Subject,  Quasi  Contracts. 

Crawford  D.  Hening,  Professor  of  Law,  University  of  Pennsylvania. 
Subject,  Suretyship. 

Clarke  B.  Whittier,  Professor  of  Law,  University  of  Chicago.    Sub^ 
ject,  Pleading. 

Eugene  A.   Gilmore,   Professor   of   Law,   University  of   Wisconsin. 
Subject,  Partnership. 

Joshua  R.  Clark,  Jr.,  Assistant  Professor  of  Law,  George  Washington 
University.    Subject,  mortgages. 

Ernst  Freund,  Professor  of  Law,  University  of  Chicago.     Subject, 
Administrative  Lazv. 

Frederick  Green,  Professor  of  Law,  University  of  Illinois.     Subject,- 
Carriers. 

Ernest  G.  Lorenzen,  Professor  of  Law,  George  Washington  Univer- 
sity.   Subject,  Conflict  of  Lazvs. 

William  C.  Dennis,  Professor  of  Law,  George  Washington  University. 

Subject,  Public  Corporations. 
James  Brown  Scott,  Professor  of  Law,  George  Washington  Univer- 
sity ;     formerly   Professor   of   Law,    Columbia   University,    New 
York  City.    Subjects,  International  Lazv;   General  Jurisprudence; 
Equity. 

James  Brown  Scott, 
Wasxii-xgtox,  D.  C,  January,  1911.  General  Editor. 


Following  are  the  books  of  the  Series  now  published,  or  in  press: 

Administrative  Law  Damages 

Bills  and  Notes  Partnership 

Carriers  Persons 

Conflict  of  Laws  Suretyship 

Criminal  Law  Trusts 

Criminal  Procedure  Wills  and  Administration 


TABLE  OF  CONTENTS 


INTRODUCTION. 
(Page  1.) 

PART  I. 
Administrative  Power  and  Action, 

CHAPTER  I. 

Executive,  Quasi  Judicial,  and  Quasi  Legislative  Functions. 

Section  Page 

1.  The  Duty  to  See  That  the  Laws  are  Executed 4 

2.  Powers  of  Supervision 6 

3.  Orders  of  Individual  Application — Administrative  and  Quasi  Judicial 

Determinations  10 

4.  Same — Enforcing  and  Directing  Powers IS 

5.  Same — Conditions  Annexed  to  Grant  of  License 33 

G.     Same — -Licensing  Power  and  Power  to  Revoke  Licenses 36 

7.  Administrative  Powers  of  Regulation — Scope  and  Validity 43 

CHAPTER  IL 

Administrative  Discretion. 

8.  Construction  of  Powers 61 

[).     Considerations  Guiding  Discretion 70 

10.  Validity  of  Unregulated  Discretion 82 

CHAPTER  III. 

Form  and  Proof  of  Official  Acts. 

11.  Action  of  Official  Bodies — The  Body  must  be  Convened SO 

12.  Same — Act  of  Majority  Binds  Body 87 

13.  Same — Pi-esumption  That  All  :\Iet  or  Were  Notified 89 

14.  Evidence  of  Official  Action— On  Direct  Attack 91 

15.  Same — In  Enforcement  Proceedings 95 

16.  Same — In  Collateral  Proceedings 99 

17.  Evidence  of  Official  Character 105 

18.  De  Facto  Office  and  Authority Ill 

Fr.Adm.Law  (ix) 


TABLE  OF  CASES 


^CASES  CITED  IN  FOOTNOTES  ARE   INDICATED    BY  ITALICS.      WHERE   SMALL  CAPITALS 
ARE   USED,    THE    CASE   IS   REFERRED   TO    IN   THE   TEXT] 


Page 

Abeel  V.  Clark 50 

JEtna  Ins.  Co.  v.  JS'ew  York 363 

JEina  Life  Ins.  Co.  v.  Jones 93 

Allbutt  V.  General  Council  of  Med- 
ical Education  &  Registration. .   542 
AUhutt  V.  General  Council. .  .443,  463 
Allegheny   City  v.   Millville,  etc., 

R.    Co 36 

Allen  V.  Sharp , 529 

Ame7'ican  Casualty  Ins.  Co.  v.  Fy- 

ler    442 

American     School     of     Magnetic 

Healing   v.   McAiinulty 657 

Amperse  v.  Kalamazoo 451 

Amy  V.  Supervisors 432 

Amy  V.  Supervisors .303,  345 

Arms  V.  Ayer. 51 

Armstrong  v.  Murphy. 443 

Arnson  v.  Murphy 325 

AshMj  V.  White 296 

AsHBY  V.  White 293 

Asher  v.  Calell 307 

Ashley  v.  Port  Huron 347 

Attorney  General  v.  Davy    88 

Attorney     General     v.     Guilford 

County  Justices 443 

Attorney  General  v.  Northampton  473 

Attorney  General  v.  Sullivan 493 

Auffmordt  v.  Hedden 204 

Avcrill  V.  Smith 316 

Ayers,  In  re 396 

Ayers  v.  Hatch 66 

Ayers  v.  Hatch 463 

Bagg's  Case 423 

Baldwin  v.  Smith 249 

BahUcin  v.  Smith 345 

Ball  V.  Pattridge 464 

Ballon  V.  State 372 

Bartlett  v.  Boston 87 

Barton  v.  Syracuse 350 

Bassett  v.  Godschall 284 

Bates  &  Guild  Co.  v.  Payne 662 

Bates  cC-  Guild  Co.  v.  Payne 422  | 

Fr.Adm.Law  (xiii) 


.66, 


Bath  County  v.  Amy 

Batters  v.  Dunning 

Baumgartner  v.  Hasty 

Beaurain  v.  Sib  Wm.  Scott 

Bedford  v.  Rice 

Belcher  v.  Farrar 

Beley  v.  Naphtaly 

Bell's    Gap    R.    Co.    v.    Common- 
wealth   

Beltv.  State 

Bennett  v.  Whitney 

Beyer  v.  Tanner 

Bissell  V.  Jeffersonville 

Blaclcet  v.  Blizard 

Blue  V.  Beach 

Board   of   Com'rs   of  Huntington 

County  V.  Heaston 

Board  of  Education  of  Cincinnati 

V.  Yolk 

Board  of  Health  of  City  of  Yon- 

kcrs  V.  Copcutt 

Board  of  Sup'rs  of  Bureau  Couuty 

V.  Chicago,  B.  &  Q.  R.  Co 

Board  of  Sup'rs  of  Stephenson  Co. 

V.  Manny 

Bollman's  Case 

Boston  fC-  M.  U.  R.  v.  Foh:niit 

Box   V.    Allen 

Boyd  V.  United  States 

Boyer  v.  Jones 

Boyle,  In  re 

Bradley  v.  Fisher 

Bradley  v.  Fisher 

Bridge  St.,  etc.,  Co.  v.  Hogadone.. 

Brittain  v.  Kinnaird 

Brown  v.  District  Council  of  yar- 

ragansett 

Broken  v.  Perkins 

Brown  v.  Walker 

Burton  Stock  Car  Co.  t\  Traeger.. 

Busiiell's  Case 

Buttcrworth  v.  United  States 

Buttfield  V.  Stranahan 60, 

262, 


459 
443 
244 
271 
113 
156 
645 

115 

372 

307 

306 

99 

88 

51 

13 

350 

144 

517 

362 
517 
468 
396 
217 
242 
553 
276 
271 
268 
535 

517 

243 

217 

579 

272 

517 

160  j 

548 


XIV 


TABLE  OF  CASES. 


Page 

Buttricli  V.  Lowell 356 

Btirne  v.  Chicago  General  R.  Co.    36 

Caha  V.  United  States 217 

CaMcr  v.  Ualket 535 

Campbell  v.  Phelps 345 

Candee,  Ex  parte 453 

Capel  v.  Child 175 

Carr  v.  United  States 31)5 

Carter  v.  Colhij 154 

Carter  v.  Harrison 296 

Cary  v.  -Curtis 311) 

Case  V.  Hall 107 

Central  of  Georgia  Ry.  v.  Wright  122 

Chapman  v.  Limericlc 8G 

Chegaray  v,  Jenkins 339 

Cherry  v.  Commomcealth 193 

Chester  v.  Wabash,  ete.,  Co 30 

Chieago  v.  Burtice 422 

Chicago  v.  Manhattan  Cement  Co.  347 
Chicago,   M.   &   St.   P.   R.    Co.   v. 

State   594 

Chieago  &  N.  W.  R.  Co.  v.  Deij. . .  87 
Chicago  d  R.  J.  R.  Co.  v.  Whipple  480 
Chicago,  etc.,  R.  Co.  v.  islebraslca. .  150 

Child  V.  Bemus 161 

Chin  Bale  Kan  v.  United  States. . .  616 

Chin  Tow  v.  United  States 6.30 

Chin  Yoio  v.  United  States 499 

Cicero  Lumber  Co.  v.  Cicero 84 

City  of  Aurora  v,  Schoberlien ....  520 

City  of  Chicago  v.  Burtice.- 579 

City  of  Chicago  v.  Chicago  City  R. 

Co 408 

City  of  Ix)well  v.  Archambault. . .     36 

City  of  Ottawa  v.  People 4.32 

City  of  rhiladelphia  v.  Scott 134 

City  of  Salem  v.  Eastern  R.  Co.. .  150 
City  of  San  Antonio  v.  White...  356 

Clinlcenbeard  v.  United  States 529 

Cochrane  v.  Frostburg 347 

Cohen  v.  New  York 3-50 

Colon  V.  Lisle 268 

Cotton  V.  Hanchett 336,  422 

Commissioners  v.  Sellew 431 

Commissioners  of  Enquiry 217 

Commissioners    of    Highicays    v. 

Harper 468 

Commissioners  of  Maxton  v.  Com- 
missioners of  Robeson  County. .  443 
Common   Council   of   Oshkosh   v. 

State   487 

Commonwealth  v.  Beaumarchais . .  364 
Commonwealth  v.  Emery 217 


Page 

Commonwealth  v.  Hamee 163 

Commonwealth  v.  Kane. . .- 113 

Commonwealth  v.  Kinsley 160 

Commonwealth  v.  Kinsley 529 

Commonwealth  v.  Shortall 556 

Commonwealth  v.  Sisson    154 

Commonwealth  v.  Sisson 520 

Commonwealth  v.  Slifcr 175 

Commomoealth  v.  Wall 193 

Commomoealth  v.  Yost 87 

Cooper   V.    Board   of   Works    for 

Wadsworth  District 252 

Corcoran  v.  Board  of  Aldermen  of 

Cambridge  122,  126 

Counselman  v.  Hitchcock 217 

Courser  v.  Powers Ill 

Coxe  Bros.  &  Co.  v.  Lehigh  Valley 

R.  Co IS 

Craig  V.  Charleston 355 

Crampton  v.  Zabriske 422 

CuMMiNGS  V.  Bank 5S9 

Cunningham  v.  Neagle 6 

Czarra  v.  Board  of  Medical  Supers  185 

Daniels  v.  Hathaioay 300 

Darlington  v.  Mayor 347 

Dattgherty  V,  Beown 304 

Davies,  In  re 220 

Davis  v.  Commonwealth 85 

Day  i\  Day 244 

De  Camp  v.  Archibald 222 

Decatur  v.  Paulding 438 

Deems  v.  Baltimore 251,  416 

Delaney  v.  Flood 413 

De  Lima  v.  Bidwell 561 

De  Lima  v.  Bidwell 345 

Den  ex  dem,  Murray  v.  Iloboken 

Laud  &  Improvement  Co 235 

Detroit  v.  Martin ^  .  363 

Detroit,  etc.,  R.  Co.  v.  Osborn 126 

Devine  v.  Belt 449 

Doane  v.  Chicago  City  R.  Co 36 

Dobbins  v.  Los  Angeles 413 

Dodd  v.  Francisco 76,  200 

Dolan,  Appeal  of 484 

Doll  V.  Evans 242 

Dooley  v.  United  States 376 

Doolittle  V.  Supervisors  of  Broome 

County 422 

Do7n  V.  Backer 301 

DoRN  V.  Backer 5.59 

Downer  v.  Lent 301  *^ 

Dows  V.  CnicAGO 417 

Drainage  Com'rs  v.  Griffin 468 


TABLE   OP   CASKS. 


XV 


Page 

Drewe  V.  Cour.TOx liOo 

DuFFiELD  V.    School  Dist W 

DuUam  v.  Willson 172 

DuUain  r.  WilUon 407 

Jiiincan  r.  Lynchhurg 8.10 

Dunn  r.  Burleigh l.'()7 

Jhagin  v.  llinot o2 

Jlarp  V.  Lcc 244 

Easton  v.  Calendar 2!>7 

J-Jaston  V.  Calendar 5(>1 

Eckhardt  v.  Buffalo 2G 

Eckliardt  v.  Buffalo 421 

Eddy  V.  Board  of  Health 2.j1 

Edson  V.  Cranylc 2(>7 

Elcin  V.  United  States 204,  499 

Elbin  V.  Wilson 303 

Eldred  v.  Sexton 107 

Eldred  v.  Sexton 34r> 

Elliott  V.  Swartwout 316 

Erskine  v.  Hohnliach 341 

Evans  V.  Lewis 497 

Eve  V.  State 242 

Falls  V.  Cairo 3(;2 

Faryo  v.  Hart 421 

Fath  v.  Koeppel 312 

Feather  v.  Regina 372 

Felscnthal  v.  Johnson 122 

Field  V.  People 4 

Fields  V.  Stolcley 244 

Fire  Department  of  City  of  New 

York  V.  Gllmour 544 

Fire  Department  of  City  of  Xeio 

York  r.  Oilmour     529 

Fischer  v.  St.  Louis 85 

Fisher  v.  McGirr 2G8 

Fitter  V.  Cominonicealth 3G4 

Fitts  V.  McGehee o9G 

Flaiiekty,  In  re 84 

Flying  Fish,  The 332 

Ft.  Plain  Bridge  Co.  v.  Smith 243 

Foster  V.  Van  Wyck 479 

Francis  v.  Fran^cis 30 

FKENcn  V.  Fyan (M3 

Fuller  V.  Colfax  Co 10 

Fuller  V.  Colfax  Co. 529 

Gage  V.  Censors  of  New  Hamp- 
shire Electric  Medical  Society . .  193 

Gage  v.  Censors  of  Xeiv  Hamp- 
shire Electric  Medical  Society. .  463 

Galbraith  v.  Llttiech 90 

Galbraith  v.  Litticch 529 


Page 
Gcnova's  License 164 

Gibbons  v.  United  States 371 

Gilbert  v.  Columbia  Turnpike  Co.  91 
Gilbert  v.  Columbia  Turnpike  Co.  529 

Gillespie  v.  Palmer 302 

Gillespie  v.  Palmer 204 

Glidden  v.  Harrington 575 

Golden  v.  Department  of  Health. .  142 

Gonzales  v.  Williams 618 

Gonzales  v.  Williams 345,  499 

Gordon  v.  Farrar 296 

Gordon  v.  Livingston 290 

Gordon  v.  United  States 226 

Gordon  v.  United  States 370 

Governors  of  Bristol  Poor  v.  Wait  529 

Gray  v.  Ayrcs 244 

Greebway  v.  Hurd 317 

Greer  v.  Downey 262 

Gregory  v.  Brooks 290 

Gregory  v.  Mayor 31 

Grindley  v.  Barker 87 

Grindley  v.  Barker 345 

Groenvelt  v.  Buricell...  211,  222,  466 

Groenvelt  v.  Burwell 272 

Gross'  License,  In  re 80 

Gross^  License,  In  re 529 

Grove  v.  Van  Duyn 276 

Guden,  In  re 67,  183 

Gundling  v.  Chicago 85 

Guptail  V.  Teft 337 

Gwin  V.  Barton 242 

Hagar   v.   Reclamation   Dist.    No. 

108  117 

Hagar  v.   Reclamation  Dist:   No. 

lOS    529 

Hale  V.  Henkcl 217 

Halloran  v.  McCullough 285 

Ham  V.  Board  of  Police  of  Boston  175 
Hamilton  Traction  Co.  v.  Parish. .     36 

Hammond  v.  Howell 272 

Harbaugh  v.  Alartin 92 

Harlow  v.  Pike 126 

Harman  V,  Tappenden 293 

Harrington  v.  Board  of  Aldermen 

of  Providence 144 

Harrington  v.  Glidden 572 

Harrington  v.  Glidden 529 

Harris,  Ex  parte ;  453 

Harrison  v.  People 67 

Harrison  v.  People 443,  463 

Hart  V.  Albany 243 

Ilartman  v.  Wilmington 16 

Hartman  v.  Wilmington 144,  492 


xvi 


TABLE   OF   CASES. 


Page 

Hassel's  Case 433 

Hathaicaij  r.   Tfinlon 307 

naverty  v.  Bass 257 

Hawcs  V.  Brewer 448 

Hazard  v.  Israel 345 

Health    Department    of    City    of 

New    York    v.    Rector,   etc.,    of 

Trinity  Church 145 

Health    Department    of    City    of 

New   York   v.   Rector,   etc.,   of 

Trinity  Church 529 

Heath  v.  State 113 

Heistcr  v.  Metropolitan  Board  of 

Health    137 

ncndriclcs  v.  Gonzales 334 

Henry  v.  Barton 70 

Hcrr  V.  Central  Kentucky  Lunatic 

Asylum 395 

Hill  V.  Bigr/c 283 

Hill  V.  Boston 346 

Hilton  V.   Merritt 580 

Hines  v.  Charlotte 347. 

Hoke  V.  Field 86 

Hopkins     V.      Smethwick      Local 

Board  of  Health 256 

Hopson,  Appeal  of 77,  525 

Horton  v.  Garrison 89 

Houghton  v.  Payne 667 

Hover  V.  Barkhoof 307 

Howard     v.     First     Independent 

Church    36 

Howard  v.  United  States 331 

Hubhell   V.    Goodrich 244 

Huhhcll   V.    Goodrich 345 

Huey  V.  Richardson 306 

Huff  mire  r.  Brooklyn 350 

Huling  V.  Ehrich 130 

Huling  v.  Ehrich 421 

Hutton  V.  Camden 136,  212 

Hutton  V.  Camden 529 

Illinois  State  Board  of  Dental  Ex- 
aminers V.  People 72 

Illinois  State  Board  of  Dental  Ex- 
aminers V.  People 443,  463 

Indiana  v.  Gohin 307 

Inhabitants  of  Quiney  v.  Kcnnard    38 

Inhabitants  of  Rutland  v.  Worces- 
ter County  Com'rs 504 

Interstate  Commerce  Commission 
V.  Alabama  Midland  R.  Co 597 

Interstate  Commerce  Commission 
V.  Alahama  Midland  R.  Co 529 

Interstate  Commerce  Commission 
V.  Brimson 222 


PaKe 

Interstate  Commerce  Commission 

V.  Cincinnati,  N.  O.  &  T.  P.  R. 

Co 20 

Interstate  Commerce  Commission 

V.  Cincinnati,  etc.,  R.  Co 521) 

Interstate  Commerce  Commission 

V.  Illinois  Cent.  R.  Co 001 

Jackson  v.  People 475 

Jacob  (Tomlins)   Law  Dictionary, 

London,  1800,  v.  Discretion 61 

Janvrin,  In  re 26 

Jeffries  v.  Ankeny 294 

Jenkins  v.  Waldrou 294 

John  Giles'  Case 433 

John  Giles'  Case 72 

Johnson  v.  Stedman 105 

Johnson  v.  Stedman 345 

Johnson  v.  Towsley 044 

Johnston  v.  District  of  Columhia  35t> 
Jones  V.  Com'rs  of  Moore  County  443 

Jones  V.  Williamshurg 347 

Joyce  V.  Chicago 190 

Joyce  V.  Chicago 492 

Kansas  Home  Ins.  Co.  v.  Wilder. .  002 

Eavanagh,  Ex  parte 196 

Kcenan  v.  Perry 177 

Keenan  v.  Southworlli 344 

Keiser  v.  Lines 77 

Kemp  V.  Nerille 276 

Kendall  v.  Stokes 284 

Kendall  v.  United  States 434,  454 

Kendall  v.  United  States 6 

Kentucky  &  I.  Bridge  Co.  v.  Louis- 
ville &  N.  R.  Co 13 

Kentucky  cC-  /.  Bridge  Co.  v.  Louis- 
ville d  N.  R.  Co 228 

Kerrison  v.  Sparrow 396 

King  V.  Bishop  of  Litchfield 434 

King  v.  Bishop  of  London 197 

King  V.  Davenport   24() 

King  v.  Davenport 345 

King  v.  Hayes   154 

King  V.  Yenahlcs 529 

King  v.  Wheeler 420 

King  County  Elevated  R.  Co.,  Mat- 
ter of 36 

Kinneen  v.   Wells 294 

Kuntz  V.  Sumption 125 

Kursheedt  Mfg.  Co.,  In  re 576 

La    Croix    t\     Conunissioncrs    of 
Fairfield  County 500 


TABLE   OF   CASES. 


XVll 


Za  Croix  V.  County  Commissioners     IG 

Laidlaw  v.  Abraham 570 

Jutnhorn  v.  County  Com'rs 303 

Landau  v.  New  York 354 

T.auge  V.  Benedict 269 

Laiigenberg  v.  Decker 217 

Langenherg  ^\  Decker 499 

Laugf ord  v.  United  States 308 

Lants  V.  Hightstotcn 39,  4S7 

Lauterjung,  Matter  of 482 

Lawton  v.  Steele 2G2 

Lawton  v.  Steele 345 

Lcm  Moon  Sing  v.  United  States. .  010 

Levin  v.  Burlington 356 

Levy  V.  New  York 340 

Licenses,  In  re 82 

Lillienfeld  v.  Conimonwealtli 198 

LiUienfeUVs   Case 185,  529 

IJncolu  V.  Hapgood    290 

Lincoln  v.  Smith  268 

Lincoln  v.  Worcester    359 

Lingo   Y.   Burford 102 

Lingo  v.  Burford 421 

Little  V.  Barreme 332 

Little  V.  Barreme 552 

Litllc  V.  Dcnn 102 

Jjttle  V.  Madison 354 

Livingston  v.  Jefferson 284 

Loesch  V.  Eoehler 154 

Love  V.  Judge  of  Recorder's  Court    84 

Lovell  V.  Seehaclc 257 

Lowe  V.  Conroy 306 

Loive  V.  Conroy 542 

Loivell  V.  Archamhault 421 

Lynde  v.  Winnchago  Co 86 

McCord  V.  High 303 

McCormiclc  v.  Fitch 242 

]\IcCoy  V.  Curtice 89,  107 

McCoy  V.  Curtice 345 

McGregor  v.  Supervisors 92 

Mcllhenney  v.  Wilmington 356 

;\IcLean  v.  Jephson 556 

UcLcan  v.  Jephson 301,  529 

McLeod  V.  Scott TO 

McNutt  V.  Livingston 345 

Magnetic  School  of  Healing  v.  Mc- 

Annulty 422 

Maguire  v.  Smoclc 36 

Magwire  v.  Tyler 517 

Martin  v.  Lemon 88 

Martin  v.  jNlott 548 

Martin  v.  Molt   284,  345 

-Alartin  v.  State    101 

Martin  v.  State   529 

Fk.Adm.Law — b 


Page 

Martin  v.  Symonds 72 

Mason  v.  Pearson 70 

Meeker  v.  Van  Rensselaer 93 

Meeker  v.  Van  Rensselaer..  . .  243,  345 
Metropolitan  Board  of  Health  v. 

Heister 137 

Metropolitan  Board  of  Health  v. 

Heister 421,  521 

Metropolitan  Milk  &  Cream  Co.  v. 

Ney»^   York 40 

Miles  V.  Worcester 350 

Mill  V.  Hawker 339 

Miller  v.  Horton 535 

Miller  v.  Horton...   154,  251,  313,  345 

Miller  v.  Wade 77 

Mills  V.  Brooklyn 350 

Milwaukee  Iron  Co.  v.  Schuhel...  479 
Morford  v.  Board  of  Health  of  As- 

bury  Park 30 

Mostyn  v.  Fabrigas 280 

Movers  v.  S.medley 390 

Muller  V.  Com'rs  of  Buncombe  Co.     70 

Munk  V.  Frink 528 

Munn  V.  Corhin 213 

Murray  v.  Hoboken  Land  &  Im- 
provement   Co 235 

Musgrove  v.  Chun  Teeong  Toy.  . . .  284 

Mygatt  v.  Washhurn 301 

Mygatt  v.  AVashbukn 500 

Nealy  v.  Brown 99 

Nealy  v.  Brown 529 

Nealy  v.  Brown 90 

Neff  V.  Paddock 243 

licff  V.  Paddock 345 

Nelson  v.  State  Board  of  Health. .     29 

Neiv  London  v.  Brainard 422 

Newman  v.  Supervisors  of  Living- 
ston County 302 

New  Orleans  v.  Railroad  Co 579 

Nichols  v.  United  States 377 

Nichols  V.  Walker 561 

Nickerson  v.  Thompson 290 

Nishimura  Ekiu  v.  United  States  611 
Nishimura  Ekiu  v.  United  States  499 
Noble  v.  Union  River  Logging  R. 

Co 638 

NoMe  V.  Union  River  Logging  R. 

Co 422 

Noel  V.  People 84 

North  American  Cold  Storage  Co. 

V.   Chicago 25<3 

North  American  Cold  Storage  Co. 
V.  Chicago 154,  251,  421 


TABLE  OF  CASES. 


Page 
North  German  T.loyd  S.  S.  Co.  v. 

Hedden  5(^C 

yoncallc  St.  R.  Co.'s  Appeal 525 

Origet  V.  Hedden 208 

Ofihhosh  r.  State , ItJ'J 

0//a-  r.  Bacon 334 

Palmer  r.  McMahon 257 

Partridge   v.   General   Council   of 
Medical    Education    and   Kegis- 

tration  of  United  Kingdom 285 

Pascal  r.  Sullivan 5TG 

Pasmore  v.   Osivaldthistle   Urban 

Council   448 

Patterson  v.  Miller 109 

Patterson,  r.  Miller 113.  345 

Pai/ne  v.  United  States GHT 

Peaveu  v.  Rohinson 206 

Peclc,  In  re l-*'^ 

Pchrson  v.  Ephraim  Citii 185 

Pennsylvania  R.  Co.  v.  Montgom- 
ery County  I'ass.  R.  Co 86 

People  V.  Allegany  County  Sup'rs  503 

People  V.  Barker    204,  483 

People  V.  Bell 204 

People  V.  Board  of  Assessors  of 

City  of  Brooklyn 478 

People  V.  Board  of  Com'rs  of  Po- 
lice    500 

I'eople  V.  Board  of  Com'rs  of- Po- 
lice   and    Excise    of    City    of 

Brooklyn 102 

People  V.  Board  of  County  Can- 
vassers of  Onondaga  County...  445 
People  V.  Board  of  Education  of 

City  of  Quincy 495 

People  V.  Board  of  Health  of  City 

of  Yonkers 139 

People  V.  Board  of  Health  of  City 

of  Yonl-ers 474,  492,  542 

People  V.  Board  of  Police  of  Met- 
ropolitan Police  Dist.   of   State 

of  New  York 480 

People     V.     Board     of     Railroad 

Com'rs 474 

People    V.    Board    of     Sup'rs    of 

Greene  County 443 

People  V.  Board  of  Sup'rs  of  Mad- 
ison County 95 

People  V.  Board  of  Sup'rs  of  Mad- 
ison County 463 

People  V.  Brighton 468 

People  V.  Burt    474 

People  V.  Bush 474 


Paga 

People  V.  Busse  447 

People  V.  Butler   Street  Foundry 

Co 217 

People  V.  Collier    474 

People  V.  Collins   HI 

People  V.  Collins   463 

People  V.  Common  Council  of  Syr- 
acuse     50O 

PKOrLE  V.  Dental  Examiners.  . . .  73 
People  V.  Department  of  Health.  .  463 
People  V.  Department  of  Health  of 

City  of  New  York 107 

People  V.  Dunne    446 

People  V.  Fairchild 508 

People  V.  Fairchild 497 

People  V.  Feitner 204 

People  V.  French 215 

People  V.  French    215,  4S."> 

People  V.  Glennon 215 

People  V.  Goodwin    479 

People  V.  Grant 70,  44:; 

People  V.  Healy  510 

People  V.  Healy 463,  497,  516 

People  v.  IIiggins 176 

People  V.  Hilliard  70 

People  V.  Hopson 112 

People  V.  Hopson    529 

People  V.  Humphrey   185.  492 

People  V.  Illinois  State  Board  of 

Dental  Examiners 62 

People  V.  Illinois  State  Board  of 

Dental  Examiners 463 

People  V.  Kelly 217 

People  V.  Lindblom 485 

People  V.  McCoy    165 

People  V.  McCoy    529 

People  V.  McGlyn 200 

People  V.  Meyers  164 

People  V.  Morton 179 

People  V.  Morton 4fi3 

People  V.  Murray    86 

People  V.  National  Bank 242 

People  V.  New  York,  L.  E.  &   W. 

R.   Co 9 

People  V.  Norton  284 

People  V.  O'Brien 217 

People  V.  Olsen 502 

People  V.  Parker   488 

People  v.  Railroad  Com'rs 474 

People  V.  Regents  of  University  of 

Michigan 429 

People  V.  Rice    445 

People  V.   Supervisors   of  Queens 
County 500 


TABLE   OF   CASES. 


XIX 


Page 
People  V.  Supervifiors  of  St.  Lair- 

rence  County 474 

People    V.     Supervisors    &    Town 
Clerk  of  Ohio  Grove  Tp.,  Mercer 

County    427 

People  V.  Syracuse   500 

People  V.  Waite 507 

]'(0it1e  r.  Waitc     407 

I'eople  V.  Weber    118 

People  r.  Whitcomb    407 

People  V.  Whitlock  178 

People  V.  Whitlock   407 

People  V.  Willcoje    -0 

People  V.  Williams   01 

People  ex  rel.  Linton  v.  Brooklyn 

Heights  R.  Co 10 

People's  Nat.  Bank  v.  Marye 421 

Perry  v.  Reynolds 20(5 

Persons.  Ex  parte 72 

Philadelphia  v.  Seott 520 

Pike  County  Com'rs  v.  People.  . . .  42S 
Pittsburgh,  C,  C.  &  St.  L.  R.  Co. 

V.  Backus 122 

Pittshurffh,  C,  C.  d-  St.  L.  R.  Co. 

r.  Backus 421 

Pittsburg,    etc..    By.   v.    Board   of 
Public  Works  of  West  Virginia  417 

Piatt  Bros.  r.  Waterhury ;:)50 

Porter  r.  Purdy 306 

Post  V.  Township  Board  of  Spar- 
ta     443.  451 

Potts  v.  Breen 43 

Poits  V.  Breen 345,  463 

Powell   v.    BuUis 487 

Provident  Saving  Life  Assur.  Soc. 

v.    Cutting 604 

Pruden  v.  Love 257 

Queen  v.  Arciibishop  of  Canter- 
bury      174 

Queen  v.  Bon-man    402 

Queen  v.  Justices  of  Walsall 106 

Queen  r.  Licensing  Justices lOS 

Queen  r.  Wood    402 

Queen,  The,  v.  Wood 534 

Raaf  V.  State  Board  of  Medical 

Examiners   528 

Rail  V.  Potts 206 

Randall  v.  Brigham 276 

Raymond  r.  Fish 251,  313 

Regina  r.  Bartlett 108 

Regina  v.  Boteler    70 

Regina  v.  Bowman 33 


Page 
Reservoir  Co.  v.  Mackenzie....  31 
Rex  V.  Archbishop  of  Canterbury  434 

Rex  V.  Askcio   434 

Rex  V.  Glamorganshire   465 

Rex  V.  London  449 

Rex  V.  Rosewell 244 

Rex  V.  Veuables 164 

Rex  r.  Williams 2S4 

Rex  V.  Young  &  Pitts 433 

Rexford  v.  State 372 

Reynolds  v.  Schultz 210 

Reynolds  v.  Schultz 422 

Richmond  Co.  v.  Ellis 648 

Riggs  V.  Johnson  Co 462 

Ripley  v.  Gelston 318 

Roberts  v.  United  States 443 

Robertson  v.  Sichel 345 

Rockland  v.  Rockland   Water  Co.  570 

Rodman  r.  Harcourt 113 

Romero  v.  United  States 114 

Rooke  V.  Withers 301.  561 

Rosenbaum  i-.  Bauer 462 

Rosenthal  v.  State  Board  of  Can- 
vassers      445 

Rounds  V.  Mansfield 107 

Runkle  v.  United  States 86 

St.  Joseph  V.  Levin 217 

Salem  v.  Eastern  R.  Co 251,  520 

Salem  v.  Railroad  Co 538 

Sanborn,  In  re 226 

Sangamon  County  v.  Broicn 523 

Saranac   Land   &    Timber   Co.   v. 

Roberts  306 

Savacool  v.  Boughton 340 

Sawyer,  In  re 309 

Saicyer,  In  re 499 

Sawyer  v.  Railroad 99 

Sawyer  v.  State  Board  of  Health  517 

Schaezlein  v.  Cabaniss 56 

SciiLAU  decker  v.  Marshall 70 

Schoemaker,  In  re 10(> 

Schwuchow  V.  Chicago 38 

Seaman  v.  Patten 287 

Sharp  V.  Wakefield 70 

Shoup  V.  Shields 339 

Shumxcay  v.  Baker  Co 579 

Shurtleff  v.  United  States 183 

Silver  v.  Ladd 644 

Sims,  Matter  of 222 

Skinner  v.  Morgan 307 

Smith,  In  re 542 

South  V.  Maryland 307 

Spalding  v.  Vilas 284,  290 


XX 


TABLE   OF   CASES. 


Page 

Sparrow,  Ex  parte 4ti3 

Sparrow,  In  re 77 

Speed  V.  Common  Council HOO 

Spencer,  Appeal  of 52G 

Spencer  &  Gardner  v.  People 577 

Spcneer  <C-  Gardner  v.  People 529 

Spraiiherry  v.  Atlanta 164 

Spring  v.  Uyde  Park 362 

Stanley  v.  Albany  County  Sup'rs  582 
Stanley  v.  Supervisors  of  Albany 

County    579 

State  V.  Board  of  Com'rs  of  Jef- 
ferson County 422 

State  V.  Board  of  Com'rs  of  Tippe- 
canoe County 517 

State  V.  Board  of  Health  of  As- 

hury  Parle 492 

State  V.  Board  of  Health  of  Hud- 
son  County 66 

State  V.  Btirdge  51 

State  v.  Buudge 49 

State  V.  Burger  500 

State  V.  Carroll  112 

State  V.  Chittenden 453 

State  V.  Chittenden  215,  484 

State  V.  County  Treasurer 500 

State  V.  Davis    217 

State  V.  Dicrhcrger 113 

State  V.   District  Court   of  First 

Judicial  District 526 

State  V.  Doherty   177 

State  V.  ElMn 500 

State  V.  Evans  492 

State  V.  Fond  du  Lac 468 

State  V.  Francis    447 

State  v.  Fkemont,  E.  &  M.  V.  R. 

Co 23 

State  V.  Hanlon  62 

State  V.  Hawkins 175 

State  V.  Houser  530 

State  V.  Houser  399 

State  V.  Jennings 425 

State  V.  Johnson   9,  26,  399 

State  V.  Justices    463 

State  \.  Justices  of  Inferior  Court 

of  Morgan   County 61 

State  V.  Kansas  Cent.  R.  Co 529 

State  V.  Kellogg  185 

State  V.  Kupferie 497 

State  V.  La  Fayette  Co 453 

State  V.  Lamos 183 

State  V.  Lamos 102,  529 

State  V.  Lean    425 

State  V.  Lutz 76 


Page 

State  V.  Lyons 495 

State  V.  McGarry 177 

State  V.  Meyers 70 

State  V.  Newark 495 

Slate  V.  New  Lindell  Hotel  Co...  .  130 

State  V.  Rohart 87 

State  V.  Ryan  222 

State  V.  Sadler    579 

State  V.  St.   Louis 175 

State  V.  Schroff    490 

State  V.  Schultz   166 

State  V.  Shehoygan 36 

State  V.  Smith  175 

State  V.   Stanton 397 

State  V.  Sullivan    188,  214 

State  V.  Sullivan   497 

Slate  V.  Tomah    185 

State  V.  Topcka  497 

State  V.  Wade    307 

State  V.  Weimer    101 

State  V.  Weimer    529 

State  V.  Wilson    99 

State   Board    of   Equalization   v. 

People   579 

State  ex  rel.  Ives  v,  Kansas  Cent. 

R.  Co () 

State  Railroad  Tax  Cases 124 

State  Railroad  Tax  Cases 421 

Steinkraus  v.  Hurlhert 196 

Stephan  v.  Daniels 364 

Stetson  V.  Kempton 334 

Stetson  V.  Kempton 301 

Strickfaden  v.  Zipprick 303 

Stuart   V.   Palmer 121 

Stutsman  County  v.  Wallace 341 

Sicift   v.  Poughkeepsie 362,  479 

Taunton  v.  Taylor 156 

Taylor  v.  Louisville  &  N.  R.  Co...  583 
Taylor  v.  Louisville  &  N.  R.  Co.. .  422 

Teal  V.  Felton 326 

Tcall  V.  Felton 328 

Tearney  'v.  Sm  ith 306 

Terry  v.  Huntington 561 

Thomas  r.  Allcgliany  County 428 

Thompson  v.  Farrcr .345,  533 

Thompson  v.  Gihbs 39 

Tliompson  v.  Koch 523 

Thompson  v.  Koch 77 

Tindal  v.  Wesley 395 

Tinkler   v.   Board    of   Works    for 

Wandstcorth   Dist 29 

Tomlinson  v.  Board  of  Equaliza- 
tion     202 


TABLE   OF   CASES. 


Page 
Tomllnfion    v.     State     Board     of 

Equalization    492 

Tracy   v.   Swartwout ol4 

Irari/  r.  Swart icout 3H4 

Trail/  r.   Williams 279 

1'racr  v.  State  Board  of  Medical 

Exam iners    200 

Tfain    v.    Boston    Disinfecting 

Co 159 

Trainor  r.  Board  of  Auditors. .  ..   179 
Treasurer  of  City  of  Camden  v. 

IMulford    4GG 

Trustees  of  Schools  of  Town  21 
N.,  Range  5  W.  v.  School  Di- 
rectors of  Union  Dist 505 

Vndcrn-ood  v.  Green 313,  542 

Underwood  v.  Green 143 

Union  Pac.  R.  Co.  v.  Cheyenne. ..  419 

United  States  v.  Bailey    217 

United  States  v.  Bearers    221 

United  States  v.  Black (ilS 

United  States  v.  Blaek   443.  4G3 

United  States  v.  Douglass     19G, 

448,  403 

United  States  v.  Duell  520 

United     States    v.     Great     Falls 

Mfg.    Co 372 

United  States  v.  Griswold    329 

United  States  v.  Hitchcock    (i40 

United  States  v.  Hitcheock  ..443,  4(k5 

United  States  v.  Jones    382 

United  States  v.  Jim<i  Ah  Lung..  <nO 

United  States  v.  Ju    Toy 025 

United  States  v.  Ju  Toy 499 

United  States  v.  Lee    387 

United  States  v.  Lyneh  370 

United  States  v.  Minor   032 

United  States  v.  Pearson    402 

United  States  v.  Ritehie  13 

United  States  v.  Schurz  458,  044 

United  States  v.  Sing  Tuck 022 

United  States  v.  Sing  Tuck 499 

United   States  v.      Thbockmok- 

TON    635 

United  States  Fidelity  &  Guar- 
anty Co.  V.  Linehan C07 


Page 

Van  Cleef  v.  Chicago 3,54 

Vanderheyden  v.  Young 552 

Van  Nortwick  v.  Bennett 35 

Van  IVortwiek  v.  Bennett 492 

Vestry  of  St.  John's  v.  Hutton..  . .   134 
Vitium  V.  People 570 

Warne  v.  Varley    531 

Warne  v.  Varley   345 

"S^'atkins,   Ex  parte 498 

Waye  v.  Thompson   132 

Waye  v.  Thompson   529 

Wet)er  v.  Baird 422,  570 

Weil  V.  Ricord 137 

Weimer  v.  Bunhury 242 

Weller  v.  Snover 200 

Wet  more  v.  Tracy 243,  240 

Wheeler  v.  Patterson 290 

Whidden  r.  Chcever 313 

Whitbeck  v.  Hudson 419,  468 

Whitchurch,  Ex  Parte 27 

White  V.  Berry 408 

White  v.   Redfern 133 

Whitely  v.  Platte  County 93 

Whitely  v.  Platte  County 52i^> 

Whitfield  V.  Lord  Le  Despencer. . .  341 
Whitney  v.  Board  of  Delegates. . .  480 

Wilcox  V.  Hemming 258 

Wilco.v  V.  Hemming 345 

Wilcox  V.  McConnel 80 

Wilcox  V.  People 170 

Wilcox  V.  People 497 

Williams  v.  Errant 00 

Williams  v.  School  District 89 

AYlLLY  .V.    iNIULLEDT 55 

Wilson  r.  Alabama  Great  South- 
ern R.    Co 89,  90 

Wilson  V.  Eureka  City 82 

Wilson  V.  Eureka  City 529 

Wisconsin  Tel.  Co.  v.  MiUcaukee    30 

Wise  V.  Withers 284,  552 

Wood  V.  Farnell 345 

Warden  v.  Witt 307 

Yamataya  v.  Fisher 616 

Yates  V.  Lansing 270 

Yeager,  Ex  parte 443 

Young,  Ex  parte 396 


t 


CASES  ON 
ADMINISTRATIVE  LAW 


INTRODUCTION 


The  subject  of  administrative  law  covers  a  number  of  topics,  which 
in  treatises  and  digests  are  generally  divided  between  the  law  of  public 
officers  and  the  law  of  extraordinary  legal  remedies,  but  which  will 
also  be  found  treated  incidentally  under  such  various  heads  as  munici- 
pal corporations,  taxation,  highways,  elections,  intoxicating  liquors, 
nuisances,  public  health,  public  lands,  etc. 

The  common  element,  which  gives  the  subject  its  unity,  is  the  exer- 
cise of  administrative  power  affecting  private  rights,  and  the  term  "ad- 
ministrative law"  has  in  relatively  recent  times  gained  acceptance  as 
the  best  designation  for  the  system  of  legal  principles  which  settle  the 
conflicting-  claims  of  executive  or  administrative  authority  on  the  one 
side,  and  of  individual  or  private  right  on  the  other/ 

The  more  general  bearings  of  this  branch  of  the  law,  from  a  con- 
stitutional and  comparative  point  of  view,  have  repeatedly  engaged  the 
attention  of  eminent  publicists.  E.  Dicey,  The  Law  of  the  Constitu- 
tion, c.  12;  E.  M.  Parker,  19  Harvard  Law  Review,  p.  335;  A.  L. 
Lowell,  Government  of  England,  vol.  2,  c.  52,  pp.  489-501. 

In  France,  the  dissatisfaction  and  irritation  caused  by  the  resistance 
of  a  powerful  and  conservative  judiciary  to  the  policies  of  the  govern- 
ment, before  and  at  the  time  of  the  revolution,  had  given  rise  to  a 
theory  of  separation  of  powers,  according  to  which  certain  classes  of 
controversies  involving  matters  of  public  administration  were  with- 
drawn from  the  regular  courts  and  assigned  to  distinct  administrative 
tribunals. - 

1  See  F.  J.  Gooduow,  Comparative  Admiuistrative  Law,  N.  T.,  1S93  (re- 
viewed in  an  article  by  the  author  of  this  collection  in  IX  Political  Science 
Quarterly,  403) ;  F.  J.  Goodnow,  Principles  of  Administrative  Law  in  the 
United  States,  X.  Y.,  1905 ;    B.  Wyman,  Administrative  Law,  St.  Paul.  1903. 

-  The  regular  civil  and  criminal  courts,  however,  likewise  take  cognizance 
of  many  causes  of  action  involving  the  validity  of  administrative  acts,  so 
wherever  prosecutions  are  instituted  for  penalties,  where  suits  for  damages 
are  brought  against  public  officers,  and  where  the  government  seeks  to  con- 
demn private  property  for  public  use. 
Fk.Adm.Law. — 1 


2  INTRODUCTION. 

This  system  of  administrative  jurisdictions  subsequently  spread  to 
other  parts  of  continental  Europe,  and  it  is  natural  that  the  existence 
of  courts  exclusively  concerned  with  questions  of  administrative  law 
should  have  given  that  department  of  law  a  recognized  status  in  the 
jurisprudence  of  the  continental  states. 

The  common  law,  on  the  other  hand,  has  never  given  to  the  public 
law  a  similar  recognition  as  a  distinct  part  of  its  system.  While  old 
established  differences  of  judicature  and  procedure  have  served  to 
mark  off  the  criminal  law  from  civil  rights  and  remedies,  there  has 
been  no  similar  line  of  demarcation  for  the  public  law,  the  very  name 
of  which  has  no  place  in  the  technical  language  of  the  common  law. 
It  was,  however,  inevitable  that  the  common  law,  when  applied  to  mat- 
ters of  public  administration,  should  develop  principles  in  many  re- 
spects different  from  those  governing  ordinary  private  rights. 

In  the  first  place,  important  privileges  and  immunities  were  conceded 
to  the  Crown.  It  is  true  that  the  English  law  made  no  distinction  be- 
tween the  proprietary  and  the  governmental  capacity  of  the  Crown, 
but  in  so  far  as  the  Crown  represented  the  executive  government,  the 
law  of  the  Prerogative  meant  also  an  exemption  of  public  rights  from 
the  ordinary  rules  of  the  common  law. 

In  the  second  place,  Avhile  the  Crown  did  not  identify  itself  with  all 
its  subordinate  organs,  and  while  therefore  the  liability  of  public 
officers  was  from  the  earliest  times  treated  as  a  matter  of  common  law, 
yet  compensatory  relief  by  actions  for  damages  against  officers  came, 
generally  speaking,  to  be  confined  to  cases  where  the  illegal  act  consti- 
tuted trespass  or  conversion.  Municipal  corporations  have  generally 
been  conceded  immunity  from  liability  where  they  act  in  a  govern- 
mental and  not  in  a  proprietary  capacity.  The  state  and  the  general 
government  have  succeeded  to  the  immunity  of  the  Crown  from  being 
sued,  and  the  creation  of  a  statutory  right  to  obtain  pecuniary  relief 
from  the  public  treasury  for  losses  suffered  through  administrative 
error  or  default  is  the  exception  and  not  the  rule.  As  a  consequence, 
the  right  to  compensatory  relief,  which  is  the  backbone  of  the  common 
law,  hae  only  a  very  limited  application  in  matters  of  public  adminis- 
tration.    See  sections  33-41  of  this  collection. 

In  the  third  place,  the  right  to  specific  relief  is  represented  by  the 
extraordinary  legal  remedies,  supplemented  by  the  slowly  expanding 
jurisdiction  of  courts  of  equity  to  restrain  administrative  acts  which 
are  in  violation  of  individual  rights. 

These  extraordinary  remedies  differ  in  important  particulars  from 
other  rights  of  action.  They  are  not  matter  of  absolute  right,  but  are 
granted  or  refused  by  the  courts  according  to  a  judicial  discretion  gov- 
erned by  considerations  of  public  policy.  See  sections  62-64  of  this 
collection. 

Moreover,  even  in  those  states  in  which  in  ordinary  civil  contro- 
versies the  forms  of  action  have  been  reduced  to  one,  there  survives,  as 
a  needless  legal  archaism,  the  distinctiveness  of  the  different  extraor- 


I 


INTRODUCTION.  3 

dinary  legal  remedies,  with  provinces  in  part  mutually  exclusive,  and 
in  part  concurrent,  differing  in  scope  and  application  in  the  several 
states,  with  arbitrary  boundary  lines,  sometimes  due  to  historical  mis- 
understandings, and  in  their  aggregate  furnishing  a  highly  technical 
and  not  entirely  adequate  system  of  judicial  control  of  administrative 
action.     See  sections  47-01  of  this  collection. 

Every  case,  therefore,  arising  out  of  an  administrative  controversy 
involves  in  the  first  instance  the  question  through  which  of  the  various 
forms  of  remedies  relief  must  be  sought. 

There  is  no  state  in  which  the  law  grants,  in  general  terms,  a  right 
to  appeal  to  the  courts  from  every  administrative  decision  affecting 
individual  rights,  and  alleged  to  involve  either  a  misconstruction  of 
law,  or  an  erroneous  finding  of  facts,  or  an  abuse  of  discretion.  Nor 
is  such  an  appeal,  as  a  rule,  given  by  statutes  creating  new  adminis- 
trative powers,  the  legislatures  being,  generally  speaking,  content  to 
leave  the  individual  right  of  redress  to  the  system  of  remedies  which 
has  been  developed  by  the  unwritten  law. 

If  no  remedy  at  all  is  available,  it  must  be  that  the  legislature  has 
vested  in  an  administrative  authority  a  power  of  conclusive  determina- 
tion. Where  such  determination  has  the  effect  of  impairing  common- 
law  rights,  and  not  merely  rights  or  privileges  of  legislative  creation 
or  subject  to  absolute  legislative  disposition,  a  constitutional  question 
will  arise,  whether  such  determination  satisfies  the  requirement  of  due 
process  of  law. 

Since  practically  every  act  of  exercise  of  administrative  power  must 
be  authorized  by  legislation,  the  operation  of  general  principles  of  ad- 
ministrative law  is  constantly  affected,  and  frequently  controlled,  by 
the  language  of  statutes.  Questions  of  administrative  law,  in  other 
words,  often  resolve  themselves  into  questions  of  statutory  construc- 
tion. However,  the  constant  recurrence  of  certain  types  of  legislation 
has  evolved  principles  of  construction,  which,  in  view  of  the  rapid  and 
enormous  growth  of  public  regulation  of  all  kinds  of  interests,  are  as 
deserving  of  careful  study  as  common-law  principles. 

The  term  "administrative  law"  is  sometimes  applied  to  all  provi- 
sions of  law  regulating  matters  of  public  administration,  such  as  civil 
service,  elections,  municipal  government,  schools,  public  revenue,  or 
highways.  In  so  far  as  such  legislation  involves  problems  of  public 
policy  and  of  administrative  efficiency,  it  concerns  the  student  of 
political  science  and  of  public  administration.  The  chief  concern  of 
administrative  law,  on  the  other  hand,  as  of  all  other  branches  of  civil 
law,  is  the  protection  of  private  rights,  and  its  subject-matter  is  there- 
fore the  nature  and  the  mode  of  exercise  of  administrative  power 
and  the  system  of  relief  against  administrative  action.  This  limita- 
tion of  the  subject  seems  conformable  to  the  prevailing  usage  and 
understanding  in  this  country,  while  en  the  continent  of  Europe  all 
positive  statutoiy  law  is  treated  as  belonging  to  the  province  of  admin- 
istrative law. 


PART  I 

ADMINISTRATIVE   POWER   AND   ACTION 


CHAPTER  I 


EXECUTIVE,  QUASI  JUDICIAL,  AND  QUASI 
LEGISLATIVE  FUNCTIONS 


SECTION  1.— THE  DUTY  TO  SEE  THAT  THE  LAWS  ARE 
EXECUTED 


FIELD  V.  PEOPLE. 

(Supreme  Court  of  Illinois,  1839.     2  Scam.  70.) 

Wilson,  C.  J.^  "^^  ^'^  *  The  general  government  differs  from 
ours  in  its  powers  and  attributes ;  and  although  we  have  adopted  the 
common  law  of  England,  we  have  neither  adopted  the  form  of  that 
government,  nor  recognised  the  principles  upon  which  it  is  founded. 
According  to  the  theory  of  that  government,  the  king  is  the  sovereign 
power  of  the  state.  When  a  question  of  prerogative,  therefore,  arises 
there,  recurrence  is  had  to  the  charters  of  the  people's  rights  and 
liberties,  to  ascertain  whether  the  right  in  question  has  been  surren- 
dered by  the  king  to  the  people;  and  if  the  grant  cannot  be  shown, 
the  right  is  adjudged  to  the  king,  upon  the  principle  that  all  rights 
of  which  he  has  not  divested  himself,  by  express  grant  to  the  people, 
come  w'ithin  his  prerogative.  But  upon  the  principle  of  our  govern- 
ment, that  the  sovereign  power  of  the  state  resides  in  the  people,  and 
that  only  such  powers  as  they  have  delegated  to  their  functionaries 
can  be  exercised,  where  a  claim  of  power  is  advanced  by  the  ex- 
ecutive, the  question  is,  not  whether  the  power  in  question  has  been 
granted  to  the  people,  but  whether  it  has  been  granted  to  the  execu- 
tive ;  and  if  the  grant  cannot  be  shown,  he  has  no  title  to  the  exercise 
of  the  power.     *     *     * 

The  next  grant  of  power  relied  on  is  that  "the  executive  power 
of  the  state  shall  be  vested  in  a  Governor."  This  clause  is  treated  by 
the  court  below  as  conferring  numerous  and  ample  powers  upon  the 

1  Ouly  a  portion  of  the  opinion  of  Wilson,  C.  J.,  is  here  printed. 

(4) 


I 


Ch.  1)        EXECUTIVE,  QUASI   JUDICIAL,  AND   QUASI   LEGISLATIVE.  5 

Governor.  All  that  are  usually  denominated  executive  powers,  by 
theoretical  writers,  are  supposed  to  be  included  in  this  grant  to  the 
Governor,  except  such  as  are  expressly  conferred  upon  other  de- 
partments. This,  I  think  I  shall  be  able  to  show,  is  a  mistaken  view 
of  the  subject.  This  clause,  like  the  preceding  ones,  is  a  declaration  of 
a  general  rule;  and  the  same  remarks  are  applicable  to  this,  as  a 
grant  of  power,  that  have  been  made  in  reference  to  them.  It  confers 
no  specific  power.  What  would  have  been  its  operation,  if  the  Con- 
stitution had  contained  no  specific  enumeration  of  executive  powers, 
is  a  very  different  question  from  that  now  presented,  and  might  have 
admitted  of  a  different  answer.  But  it  has  been  settled  by  the  Supreme 
Court  of  the  United  States  that  an  enumeration  of  the  powers  of  a 
department  of  the  government  operates  as  a  limitation  and  restriction 
of  a  general  grant.     *     *     * 

This  clause  of  the  Constitution,-  like  those  dividing  the  powers 
of  government,  and  declaring  the  attributes  of  each,  is  the  declaration 
of  a  general  principle,  which  is  "not  to  be  regarded  as  a  rule  to  fetter 
and  control,  but  as  matter  merely  declaratory  and  directory."  It  con- 
fers no  specific  powers,  "nor  does  it  enjoin  any  specific  duty."  "This 
power  of  general  supervision,"  says  an  able  commentator  on  American 
law,  "is  a  duty  enjoined  on  the  federal  and  state  executives."  "It 
would  be  dangerous,  however,  to  treat  this  clause  as  conferring  any 
specific  power  which  they  would  not  otherwise  possess.  It  is  to  be  re- 
garded as  a  comprehensive  description  of  the  duty  of  the  executive  to 
watch  with  vigilance  over  all  the  public  interests."  Walker's  Amer- 
ican Law,  103.  The  Governor  is  not^to  execute  the  laws  himself,  but 
is  to  see  them  executed.  This  duty  is  performed  by  lending  the  aid 
and  power  of  the  executive  arm  to  overcome  resistance  to  the  law. 
The  history  of  the  federal  and  state  governments  affords  practical 
expositions  of  this  clause  of  the  Constitution,  in  conformity  with  this 
construction.  The  executive  is  to  see  the  laws  executed,  not  as  he 
may  expound  them,  but  as  they  may  be  expounded  by  those  to  whom 
that  duty  is  intrusted.  To  the  Legislature  is  delegated  the  authority 
to  make  the  laws,  to  the  courts  the  authority  to  expound  them,  and  to 
the  executive  the  authority  to  see  them  executed,  as  they  are  thus 
interpreted.  His  interpretation  is  proper  only  when  specially  re- 
quired by  law,  or  where  the  ordinary  means  are  inadequate  to  the  ob- 
ject of  their  design.  But  to  assume  the  power  of  expounding,  and 
also  that  of  executing  the  law,  would  be  a  usurpation  of  the  functions 
of  the  judiciary,  and  concentrating,  in  one  department,  powers  ex- 
pressly declared,  by  the  Constitution,  to  belong  to  two  separate  and 
distinct  departments.     *     *     *  3 

2  That  the  Governor  shall  see  that  the  laws  are  faithfully  executed. 

3  "It  was  urged  at  the  bar  that  the  Postmaster  General  was  aloue  subject 
to  the  direction  and  control  of  the  President,  with  i-espect  to  the  execution 
of  the  duty  imposed  upon  him  by  this  law;  and  this  right  of  the  President 
is  claimed,  as  growing  out  of  the  obligation  imposed  upon  him  by  the  Con- 


ADMINISTUATIVE   TOWER  AND   ACTION.  (Part    1 


SECTION  2.— POWERS  OF  SUPERVISION 


{ 


STATE  ex  rcl.  IVES,  Atty.  Gen.  v.  KANSAS  CENT.  R.  CO.  et  al. 
(Supreme  Court  of  Kansas,  1891.     47  Kau.  497,  28  Pac.  208.) 

Application  by  the  State,  on  relation  of  the  Attorney  General,  for 
a  peremptory  writ  of  mandamus  to  compel  the  Kansas  Central  Rail- 
road Company  and  the  Union  Pacific  Railway  Company  to  repair  the 
tracks  of  the  former  company.  Alternative  writ  quashed  on  motion  of 
defendants. 

The  powers  and  duties  of  the  board  of  railroad  commissioners  of  the 
state,  as  prescribed  by  the  statute,  so  far  as  necessary  to  be  referred 
to  in  the  determination  of  this  case,  are  as  follows : 

"Par.  1328.  Said  commissioners  shall  have  the  general  supervision 
of  all  railroads  in  the  state  operated  by  steam,  and  all  express  com- 
panies, sleeping-car  companies,  and  all  other  persons,  companies,  or 
corporations  doing  business  as  common  carriers  in  this  state ;  and 
shall  inquire  into  any  neglect  or  violation  of  the  laws  of  this  state 
by  any  person,  company,  or  corporation  engaged  in  the  business  of 
transportation  of  persons  or  property  therein,  or  by  the  officers, 
agents,  or  employes  thereof;  and  shall  also  from  time  to  time  carefully 
examine  and  inspect  the  condition  of  each  railroad  in  the  state,  and  of 
its  equipment,  and  the  manner  of  its  conduct  and  management,  with 
reference  to  the  public  safety  and  convenience.  Whenever,  in  the 
judgment  of  the  railroad  commissioners,  it  shall  appear  that  any 
railroad  corporation,  or  other  transportation  company,  fails,  in  any 
respect  or  particular,  to  comply  with  the  terms  of  its  charter  or  the 
laws  of  the  state,  or  whenever  in  their  judgment  any  repairs  are 
necessary  upon  its  road,  or  any  addition  to  its  rolling  stock,  or  any 
addition  to  or  change  of  its  stations  or  station-houses,  or  any  change 
in  its  rates  for  transporting  freight,  or  any  change  in  the  mode  of 
operating  its  road  and  conducting  its  business,  is  reasonable  and  ex- 
pedient in  order  to  promote  the  security,  convenience  and  accommoda- 
tion of  the  public,  said  commissioners  shall  inform  such  corporation 

stitution,  to  take  care  that  the  laws  be  faithfully  executed.  This  is  a  rloc- 
trine  that  cannot  receive  the  sanction  of  this  court.  It  would  be  vesting  in 
the  President  a  dispensing  power,  which  has  no  countenance  for  its  supi)ort, 
in  any  part  of  the  Constitution,  and  is  asserting  a  principle  which,  if  carried 
out  in  its  results,  would  be  clothing  the  President  with  a  power  entirely  to 
control  the  legislation  of  Congress,  and  paralyze  the  administration  of  "jus- 
tice."    Kendall  v.  United  States,  12  Pet.  524,  G12,  613,  9  L.  Ed.  1181  (1838). 

Under  the  power  to  take  care  that  the  laws  be  faithfully  executed,  the 
President  may  depute  a  United  States  marshal  to  protect  the  person  of  a 
justice  of  a  federal  court  while  engaged  in  the  performance  of  his  judicial 
duties.  Cunningham  v.  Neagle,  135  U.  S.  1,  10  Sup.  Ct.  658,  34  L.  Ed.  55 
(1890). 


Ch.  1)        EXECUTIVE,  QUASI  JUDICIAL,  AND   QUASI  LEGISLATIVE. 


of  the  improvement  and  changes  which  they  adjudge  to  be  proper,  by 
a  notice  thereof  in  writing,  to  be  served  by  leaving  a  copy  thereof, 
certified  by  the  commissioners'  secretary,  with  any  station  agent,  clerk, 
treasurer,  or  any  director  of  said  corporation,  and  a  report  of  the 
proceedings  shall  be  included  in  the  annual  report  of  the  commissioners 
to  the  Governor.  Nothing  in  this  section  shall  be  construed  as  reliev- 
ing any  railroad  company,  or  other  transportation  corporation,  from 

!  their  responsibility  or  liability  for  damages  to  person  or  property." 
Act  March  8,  1883,  c.  124,  §  5. 

HoRTON,  C.  J.*  The  question  for  our  consideration  in  this  case  is 
not  what  power  the  Legislature  of  the  state  may  delegate  or  confer 
upon  the  board  of  railroad  commissioners,  but  what  power  is  con- 
ferred by  the  existing  statutes.  It  is  contended  upon  the  part  of  the 
state  that  the  finding  of  the  railroad  commissioners  of  the  13th  day  of 
May,  1891,  that  the  Kansas  Central  Railroad  "is  in  an  unsafe  and 
dangerous  condition  for  the  transportation  of  persons  and  property 
by  reason  of  the  insufficient  condition  and  weight  of  the  iron  rails  in 
the  tracks  thereof,"  is  final  and  conclusive  upon  the  defendants  and 
this  court.  Further,  that  the  order  of  the  commissioners,  requiring  the 
Kansas  Central  Railroad  to  be  relaid  with  new  rails  of  standard  pat- 
tern, and  of  not  less  weight  than  56  pounds  to  the  lineal  yard,  is  also 
final  and  conclusive;  that,  in  proceedings  in  this  court  to  compel  a 
compliance  with  the  order  of  the  commissioners,  the  statute  neither 
contemplates  nor  allows  any  issue  to  be  made  or  inquiry  had  of  the 
condition  of  the  railroad  examined  by  the  commissioners,  or  of  the 
reasonableness  of  the  order  made  by  them.  The  defendants  claim  that 
the  order  of  the  commissioners,  under  the  terms  of  the  statute,  is 
advisory  only.  If  the  finding  of  the  commissioners  and  their  order 
is  final  and  conclusive,  this  court  has  no  power  to  hear  or  determine 
any  issue  of  fact,  except  upon  the  allegation  that  the  defendants  have 
refused  to  comply  with  the  order  for  repairs.  If  the  finding  and 
order  of  the  commissioners  are  final  and  conclusive,  this  court,  upon 
a  railroad  company  refusing  a  compliance  therewith,  must  at  once, 
upon  proper  application  being  made,  register  the  order  and  enforce 
the  same  literally. 

The  power  which  is  claimed  by  the  commissioners  to  be  conferred 

I  upon  them,  so  far  as  this  case  is  concerned,*  must  be  found,  if  found 
anywhere,  in  section  5,  c.  124,  Sess.  Laws  1883  (paragraph  1328, 
Gen  St.  1889).  The  Legislature  has  not  conferred  upon  the  com- 
missioners by  said  statute  the  power  claimed.  There  is  nothing  in  the 
statute  which  states,  or  can  be  construed  to  state,  that  the  orders 
of  the  commissioners  concerning  repairs  upon  a  railroad  shall  be 
ikial  or  conclusive,  or  that  the  courts  must  carry  out  their  deter- 
minations or  judgments.  Upon  the  other  hand,  the  statute  provides 
only  that  whenever,  in  the  judgment  of  the  commissioners,  any  re- 

*  Only  a  portion  of  the  opinion  is  printed. 


8  ADMINISTRATIVE   rOWEPw  AND   ACTION.  (Part    1 

pairs  upon  a  railroad  are  demanded  for  the  security,  convenience,  and 
accommodation  of  the  pubhc,  they  shall  inform  the  railroad  corpora- 
tion of  the  improvements  and  changes  which  they  adjudge  to  be  nec- 
essary, and  then  report  their  proceedings  to  the  Governor.  No- 
where is  it  stated  in  the  statute  that  the  recommendations  of  the  com- 
missioners concerning  repairs  must  be  complied  with  nolens  volens  by 
the  company;  nor  does  the  statute  authorize  the  Governor  to  carry 
into  execution  the  order  of  the  commissioners.  As  to  the  necessary 
repairs  of  a  railroad,  the  finding  and  order  of  the  commissioners,  under 
the  statute,  are  advisory  only — nothing  more.  The  order  cannot  be 
enforced  by  the  commissioners ;  it  cannot  be  enforced  by  the  Gover- 
nor; and  it  cannot  be  enforced  specifically  by  this  or  any  other 
court.     '•''     *     ''' 

In  the  first  report  of  the  commissioners,  their  powers  under  said 
section  5  were  very  clearly  and  fully  defined  by  them.  They  said : 
''The  commissioners,  under  this  section,  have  no  power  to  enforce  an 
order.  They  can  simply  advise  the  company  in  fault  of  the  changes 
desired  or  deemed  necessary.  To  have  invested  the  commission 
with  the  power  to  enforce  its  own  orders,  it  would  have  been  nec- 
essary to  have  changed  the  character  of  the  board  and  the  scope  of  its 
functions  and  pov\'ers.  It  would  have  been  necessary  to  have  given 
to  the  commission  all  the  powers  of  a  court  of  chancery,  to  be  ex- 
ercised within  the  scope  of  its  assigned  duties,  with  such  ministerial 
officers  attached  to  the  board  as  are  usual  and  necessary  to  such  tribu- 
nals, to  execute  its  injunctions  and  mandates.  It  would  have  rendered 
it  necessary  to  have  instituted  a  formal  investigation,  upon  proper 
complaint  and  notice  to  the  company  complained  of,  and  the  rendition 
of  a  formal  judgment  and  decree  upon  the  evidence  which  should 
be  submitted  to  the  board.  JManifestly,  in  such  case,  it  would  have 
been  improper  for  the  board  to  have  acted  upon  knowledge  and  infor- 
mation gathered  from  personal  observation,  or  the  ex  parte  statements 
of  individuals,  as  much  so  as  it  would  be  for  regularly  organized  courts 
to  act  judicially  upon  evidence  which  has  never  been  disclosed  to  the 
opposite  party  to  the  suit.  The  supervisory  powers  of  the  commis- 
sion would  in  such  case  extend  only  to  such  matters  as  should  be 
formally  brought  before  it  by  complaint,  and  no  such  complaint  would 
be  made  until  some  one  had  become  the  suffering  victim  of  some 
neglect,  failure,  or  other  violation  of  duty  on  the  part  of  a  railroad 
company.  Thus  the  chief  benefits  which  were  intended  to  be  secured 
by  giving  the  commissioners  general  supervisory  powers  would  be 
sacrificed  by  imposing  upon  them  those  limitations  in  the  exercise 
of  functions  which  are  necessary  to  impress  upon  judicial  decrees 
the  weight  and  character  of  impartiality."  First  Annual  Report  of 
Railroad  Commissioners  for  188:3,  p.  4.     *     *     * 

It  is  an  historical  fact,  well  known  by  those  who  attended  the  ses- 
sion of  the  Legislature  of  1883,  and  by  those  acquainted  with  the 
proceedings  of  that  body,  that  there  was  a  bitter  contention  among  its 


Ch.  1)        EXECUTIVE,  QUASI  JUDICIAL,  AND   QUASI   LEGISLATIVE.  9 

members  as  to  what  power  should  be  conferred  upon  or  delegated  to 
the  commissioners  to  be  appointed  under  the  act  or  bill  then  pending 
for  adoption.  A  part  of  the  members,  under  the  lead  of  Hon.  Eugene 
F.  Ware  and  others,  were  favorable  to  the  delegation  to  the  com- 
missioners and  the  court's  full  authority  for  the  enforcement  of  their 
orders ;  others,  and  a  majority,  opposed  the  delegation  of  such  power ; 
and  the  result  was  that  advisory  action  only  on  the  part  of  the  com- 
missioners was  provided  for.  The  national  interstate  commerce  act 
of  February  4,  1887,  differs  widely  from  the  act  of  1883  of  our  Legis- 
lature, in  expressly  providing  for  writs  of  mandamus  to  be  issued  out 
of  the  United  States  Circuit  Courts  to  compel  railroad  companies  to 
comply  with  the  orders  of  the  national  commission,  and  also  for  pun- 
ishing in  such  courts  railroad  companies  for  violating  or  neglecting 
to  obey  any  lawful  order  or  requirement  of  the  national  commission. 
Volume  1,  Interstate  Commerce  Commission  Reports,  665-671.  *  *  *  ^ 

5  See  State  v.  Johnson.  Gl  Kan.  .803,  60  Pac.  IOCS.  49  L.  R.  A.  002  (1900) 
declaring  the  act  establishing  a  conrt  of  visitation  for  the  regulation  of  rail- 
roads unconstitutional,  as  commingling  judicial  and  legislative  powers. 

See  People  v.  New  York.  Lake  Erie  it  Western  K«ih-o;ul  ConiDanv.  104  X. 
Y.  58,  9  N.  E.  856,  58  Am.  Rep.  484  (1887):  "In  regard  to  the  facts  there  is 
no  dispute.  A  plainer  case  could  hardly  be  presented  of  a  deliberate  and  in- 
tentional disregard  of  the  public  interest  and  the  accommodation  of  the  pub- 
lic. The  railroad  commissioners  have  thought  that  it  was  essential  for 
those  purposes  that  a  new  and  enlarged  building  for  passengers  and  freight 
should  be  erected.  That,  it  is  true,  was  a  question  for  them  to  decide.  The 
statute  (Laws  1882,  c.  353)  created  a  commission  of  'comi>etent  persons" ;  re- 
quired from  them  an  official  constitutional  oath;  assigned  to  them  an  office 
for  the  transaction  of  business ;  provided  a  clerk  to  administer  oaths  to  wit- 
nesses, and  a  marshal  to  summon  them ;  gave  full  power  of  investigation 
and  supervision  of  all  railroads  and  their  condition,  with  reference  not  only 
to  the  security,  but  acconnnodation,  of  the  public;  and  declared  that  whenever, 
in  their  judgment,  it  shall  appear,  among  other  things,  that  any  addition  to 
or  change  of  the  stations  or  station-houses  is  necessary  to  promote  the  securi- 
ty, convenience,  or  accommodation  of  the  public,  they  sliall  give  notice  to  the 
corporation  of  the  improvements  and  changes  which  they  deem  to  be  proper, 
and,  if  they  are  not  made,  they  shall  present  the  facts  to  the  Attorney  Gen- 
eral for  his  consideration  and  action,  and  also  to  the  I.^gislature.  All  these 
things  have  been  done.  The  commissioners  have  heard  and  decided.  They 
can  do  no  more.  After  so  much  preliminary  action  by  a  body  wisely  organ- 
ized to  exercise  useful  and  beneficial  functions,  it  might  well  be  thought  un- 
fortunate that  some  additional  machinery  had  not  been  provided  to  carry 
into  effect  their  decision.  By  creating,  the  statute  recognizes  the  necessity 
for  such  a  tribunal  to  adjust  conflicting  interests  and  controversies  between 
the  people  and  the  corporation.  It  has  clothed  it  with  judicial  powers  to 
hear  and  determine,  upon  notice,  ciuestions  arising  between  these  parties, 
but  it  goes  no  further.  Its  proceedings  and  determinations,  however 
characterized,  amount  to  nothing  more  than  an  inquest  for  information. 
We  find  no  law  by  which  a  court  can  carry  into  effect  their  decision. 
At  this  point  the  law  fails,  not  only  by  its  incompleteness  and  omis- 
sion to  furnish  a  remedy,  but  by  its  express  provision  that  no  request  or  ad- 
vice of  the  board,  'nor  any  investigation  or  report  made  by  it,'  shall  have  the 
effect  to  impair  the  legal  rights  of  any  railroad  corporation.  The  Attorney 
General  is  given  no  new  power.  He  may  consider  the  result  of  the  investi- 
gation made  by  the  commissioners,  and  their  decision,  and  so  may  the  com- 
pany ;  but  we  must  look  further  for  his  right  of  action,  and  the  corporation, 
disregarding  the  judgment  of  the  commissioners,  may  continiie  the  manage- 
ment of  its  business  in  its  own  waj' — may  determine  in  its  own  discretion  to 


10  ADMINISTRATIVE  POWER  AND  ACTION.  (Part    1 


SECTION  3.— ORDERS  OF  INDIVIDUAL  APPLICATION- 
ADiAIINISTRATIVE  AND  QUASI  JUDICIAL 
DETERMINATIONS 


FULLER  et  al.  v.  COUNTY  OF  COLFAX. 
(Circuit  Court  of  United  States,  District  of  Nebraslva,  1882.    14  Fed.  177.) 

On  motion  to  remand  cause  to  state  court. 

Dundy,  District  Judge.  This  cause  was  removed  into  this  court 
from  a  state  court  held  within  and  for  Colfax  county.  The  defend- 
ant moves  to  remand  the  same,  for  the  reason  that  the  suit  was  re- 
moved from  an  appellate  court  and  not  from  the  one  in  which  the  suit 

wliat  extent,  and  in  wliat  manner,  tlie  exercise  of  a  public  trust  requires  it 
to  sul)serve  the  'security,  convenience,  and  accommodation  of  tlie  public'  " 

Section  G  of  the  New  York  act  of  1882,  above  referred  to,  was  subse- 
quently changed,  so  as  to  read  as  follows:  "If  in  the  judgment  of  the  board, 
after  a  careful  personal  examination  of  the  same,  it  shall  appear  that  repairs 
are  necessary  upon  any  railroad  in  the  state,  or  that  any  addition  to  the 
rolling  stock,  or  any  addition  to  or  change  of  the  station  or  station-houses,  or 
that  additional  terminal  facilities  shall  be  afforded,  or  that,  any  chance  of 
the  rates  of  fare  for  transporting  freight  or  passengers  or  in  the  mode  of 
operating  the  road  or  conducting  its  business,  is  reasonable  and  expedient 
in  order  to  promote  the  security,  convenience  and  accommodation  of  the  pub- 
lic, the  board  shall  give  notice  and  information  in  writing  to  the  corporation 
(jf  the  improvements  and  changes  which  they  deem  to  be  proper,  and  shall 
give  such  corporation  an  opportunity  for  a  full  hearing  thereof,  and  if  the 
corporation  refuses  or  neglects  to  make  such  repairs,  improvements  and 
changes,  within  a  reasonable  time  after  such  information  and  hearing,  and 
fails  to  satisfy  the  board  that  no  action  is  required  to  be  taken  by  it,  the 
board  shall  fix  the  time  within  which  the  same  shall  be  made,  which  time  it 
may  extend.  It  shall  be  the  duty  of  the  corporation,  person  or  persons  oicn- 
ing  or  operating  the  railroad  to  comply  tvith  such  decisions  and  recommen- 
dations of  the  hoard  as  are  just  and  reasonaUe.  If  it  fails  to  do  so  the  board 
shall  present  the  facts  in  the  case  to  the  Attorney  General  for  his  considera- 
tion and  action,  and  shall  also  i-eport  them  in  its  annual  or  in  a  special  re- 
port to  the  Legislature." 

New  York  Railroad  Law  (Laws  1890,  c.  5G5)  §  161. 

See  People  ex  rel.  Linton  v.  Brooklyn  Heights  B.  Co.,  172  N.  Y.  90,  04  N. 

E.  788  (1902).     The  way  to  compel  action  by  railroad  corporations  is  by  tii-st 

a  Implying  to  the  railroad  commissioners,  and  not  by  judicial  proceedings  in 

the  first  instance. 

Fifteenth  Annual  Report  of  the  Interstate  Commerce  Commission  for 

THE  Year  1901. 

Complaints. 

The  work  of  the  Commission  which  pertains  directly  to  regulation  involves 
two  distinct  kinds  of  procedure:  One  based  upon  formal  petitions  filed  with 
the  Commission  under  section  13  of  the  law,  and  involving  regular  hearing 
and  investigation,  the  preparation  of  a  report  setting  forth  the  material  facts 
found  and  conclusions  reached  by  the  Commission,  and  issuance  of  an  order 
dismissing  the  case  or  directing  the  carrier  or  carriers  complained  against 
to  correct  the  rate  or  practice  which  may  be  held  unlawful.  The  other  kind 
of  procedure  arises  in  the  performance  by  the  Commission  of  its  duty,  under 
the  twelfth  section,  to  "execute  and  enforce  the  provisions  of  the  act,"  and 


Ch.  1)        EXECUTIVE,  QUASI  JUDICIAL,  AND   QUASI   LEGISLATIVE.  11 

was  brought.^    If  this  be  true  it  must,  of  necessity,  be  decisive  of  the 
motion. 

In  considering  the  motion  two  questions  arise — First,  is  a  board  of 
i  countv  commissioners  a  court  within  the  meaning  of  the  removal 
I  acts  of  Congress ;  and,  second,  is  a  mere  claim  for  damages  for  right 
I  of  way  for  a  public  road,  presented  to  the  county  board,  a  suit  within 
I  the  meaning  of  the  said  removal  acts,  so  long  as  the  claim  there  re- 
I    mains  for  consideration. 

The  state  law  provides  for  paying  for  the  right  of  way  necessary  in 
locating  all  public  roads.  If  damages  are  sustained  by  the  owners  of 
land  through  which  a  road  is  located,  the  county  is  primarily  liable 
therefor,  and  the  manner  of  making  the  claim  as  well  as  the  mode  of 
making  the  payment  is  here  perfectly  well  understood.  After  the 
location  of  the  road  all  that  seems  to  be  necessary  for  the  injured 
party  to  do  is  to  make  known  to  the  county  board  the  fact  that  dam- 
ages are  claimed  for  the  right  of  way.  If  the  claim  is  thought  to  be 
just  and  reasonable  the  county  board  allows  it,  and  draws  warrants 
on  the  county  treasurer  for  the  amount  of  damages  awarded.  If  the 
claimant  should  be  dissatisfied  with  the  amount  of  damages  so  award- 
ed him,  he  can  appeal  to  the  district  court  of  the  proper  county,  where 
the  case  is  to  be  tried  de  novo.  Thus  it  will  be  seen  that  the  "remedy 
provided  by  law  in  cases  like  the  present  one  is  alike  speedy,  effica- 
cious, inexpensive. 

The  plaintiffs  were  damaged,  as  they  claim,  in  consequence  of  a 
public  road  being  located  through  their  lands ;  and  they  presented 
to  the  county  board  a  claim  in  the  sum  of  $5,000  therefor.  The 
board  reduced  the  claim,  or  sum  allowed,  to  $250,  and  the  claimants 
appealed  to  the  district  court,  all  of  which  was  done  in  strict  accord- 
relates  to  complaints  presented  by  letter,  the  examination  of  tariffs  on  file 
in  tlie  office  in  connection  with  such  complaints,  and  correspondence  with 
shippers  and  carriers  concerning  the  same.  Complaints  of  the  latter  class 
are  called  informal  complaints,  to  distinguish  them  from  the  formal  petitions 
or  complaints  which  constitute  the  basis  of  contested  cases. 

No  order  can  be  issued  upon  an  informal  complaint  and  inquiry.  The  main 
object  of  that  method  of  procedure  is  the  speedy  disposition,  through  settle- 
ments, readjustments  plainly  required  by  the  statute,  or  advice  given  by  the 
Commission,  of  matters  in  which  regulation  is  demanded,  and  thus  to  limit 
the  number  of  contested  cases  upon  the  docket.  It  would  be  an  injustice  to 
complaining  shippers  and  communities,  amounting  frequently  to  denial  of 
relief,  to  compel  the  Institution  of  a  regular  proceeding  every  time  cause  of 
complaint  is  brought  to  the  attention  of  the  Commission ;  and  the  number  of 
cases  requiring  the  heai'ing  of  witnesses,  oral  or  written  argument,  and 
formulated  decision  would  probably  be  greater  than  the  Commission  could 
dispose  of  properly  or  without  intolerable  delays.  The  great  mass  of  com- 
plaints are  handled  and  disposed  of  by  the  Commission  by  preliminary  in- 
vestigation and  correspondence  or  conference  with  carriers  and  shippers. 
The  matters  considered  and  acted  upon  in  this  way  range  from  overcharges 
upon  small  shipments  to  rate  relations  affecting  the  interests  of  entire  com- 
munities, and  are  of  the  same  nature  as  those  which  find  their  way  to  the 
regular  case  docket  of  the  Commission. 

6  Act  Cong.  March  3,  1875,  c.  137,  §  3,  provided  that  the  petition  for  re- 
moval must  be  filed  "in  such  suit  in  such  state  court  before  or  at  the  term 
at  which  said  cause  could  be  first  tried  and  before  the  trial  thereof." 


12  ADMIXISTUATIVE   POWER   AND   ACTION.  (Part    1 

ance  with  the  law.  In  presenting  a  claim  to  the  county  board  for 
allowance,  no  formal  proceedings  are  at  all  necessary,  no  plead- 
ings of  any  sort  are  required  to  be  filed,  no  process  issued  for  any 
purpose  whatever  connected  with  the  matter,  and  no  formal  judg- 
ment follows  either  the  rejection  or  allowance  of  a  claim  by  the 
board.  The  claim,  when  so  made,  is  simply  audited,  allowed,  or  re- 
jected, as  justice  and  reason  seem  to  require.  In  case  of  an  ap- 
peal to  the  district  court,  the  appeal  is  docketed,  and  pleadings  are 
filed,  and  the  cause  then  in  all  respects  proceeds  in  the  usual  and 
ordinary  way.  The  cause  is  then,  in  every  sense  of  the  term,  in  a 
court,  and  is  also,  then,  in  every  sense  of  the  term,  a  suit. 

Now,  what  is  usually  understood  by  the  words  "court"  and  "suit," 
where  we  find  them  in  legislative  enactments  or  in  legal  proceedings? 
Blackstone  says  a  "court  is  a  place  wherein  justice  is  judicially  ad- 
ministered." To  administer  justice  judicially,  there  must  be  a  judge, 
and  usually,  though  not  always,  there  are  also  other  officers,  such  as 
clerk  and  sheriff  or  marshal.  That  also  implies  the  right  to  issue 
compulsory  process  to  bring  parties  before  the  court,  so  that  jurisdic- 
tion may  be  acquired  over  the  person  or  property  which  forms  the 
subject-matter  of  the  controversy.  To  administer  justice  judicially 
two  parties  to  a  controversy  must  exist ;  there  must  be  a  wrong  done 
or  threatened,  or  a  right  withheld,  before  the  court  can  act.  Then  a 
hearing  or  trial  follows,  and  the  "justice  to  be  judicially  adminis- 
tered" results  in  a  formal  judgment  for  one  of  the  parties  to  the  con- 
troversy. The  judgment  to  be  pronounced  usually  has  full  binding 
force,  unless  modified  or  reversed.  The  courts  can  issue  the  proper 
process  to  carry  their  judgments  into  effect,  and  in  that  way  sub- 
serve the  great  ends  of  their  creation.  But  this  is  not  so  with  the 
county  boards  in  this  state.  They  are  not  clothed  with  the  neces- 
sary power  to  issue  compulsory  process  to  bring  parties  litigant  be- 
fore them.  They  cannot,  in  cases  like  the  one  under  consideration, 
issue  process  to  compel  the  attendance  of  witnesses.  They  cannot 
and  do  not  enter  formal  judgments  in  cases  presented  to  them  for 
their  consideration.  They  have  no  authority  to  execute  any  judg- 
ments if  they  should  thoughtlessly  undertake  to  enter  them.  They 
Ijave  but  one  party  before  them  on  whom  their  orders  can  operate. 
In  short,  the  county  board  is  so  totally  unlike  a  court,  and  so  differ- 
ent in  its  constitution  and  its  objects,  that  I  am  unable  to  see  any 
similarity  between  them. 

If  the  county  board  cannot  be  regarded  as  a  court,  it  will  follow  as 
a  necessary  consequence  that  no  suit  was  pending  in  this  case  until  the 
appeal  from  the  order  of  the  board  was  filed  and  docketed  in  the  dis- 
trict court.  Two  parties  to  a  suit  seem  to  be  almost  indispensable: 
one  who  seeks  redress,  and  the  other  who  commits  a  wrong  or  with- 
holds what  is  justly  due  another.  The  parties  must  stand  in  such  re- 
lation to  each  other  that  the  machinery  of  the  court  will  operate  on 
them  when  their  powers  and  their  aid  are  invoked.     No  such  a  con- 


I 


Cll.  1)        EXECUTIVE,  QUASI  JUDICIAL,  AND   QUASI   LEGISLATIVE.  13 

dition  of  things  existed  so  long  as  this  claim  remained  before  the 
county  board.  But  when  the  appeal  was  taken,  and  docketed  in  the 
district  court,  we  then  for  the  first  time  find  a  suit  pending  in  the 
court  where  none  of  the  elements  of  either  are  wanting.  It  is  such 
a  suit  that  can  be  removed  from  such  a  court,  as  the  removal  acts  of 
Congress  contemplate. 

I  conclude,  then,  that  the  board  of  county  commissioners  of  Colfax 
county  is  not  a  "court,"  and  that  this  "suit"  was  never  pending  in  any 
other  court  than  the  district  court  of  Colfax  county,  from  which  it 
was  removed  to  this  court,  and  that  it  was,  therefore,  properly  re- 
moved herein. 

The  motion  to  remand  is  overruled.'^ 

McCrary,  Circuit  Judge,  concurs. 


KENTUCKY  &  I.  BRIDGE  CO.  v.  LOUISVILLE  &  N.  R.  CO. 

(arcuit  Court  of  United  States.  District  of  Keutucl^y,  1S89.     37  Fed.  567,  2 
L.  R.  A.  289.) 

Jackson,  Circuit  Judge.  ^  *  *  *  jj^  support  of  their  position 
that  judicial  powers  are  conferred  upon  and  exercised  by  the  commis- 
sion, counsel  refer  to  various  provisions  contained  in  sections  12,  13, 
14,  15,  16,  17,  and  18  of  the  act  [Act  Feb.  4,  1887,  c.  104,  24  Stat. 
383-386  (U.  S.  Comp.  St.  1901,  pp.  3162-3168)],  which,  together  with 
the  rules  of  practice  adopted,  show,  as  they  insist,  that  a  proceeding 
before  the  commission,  like  the  one  in  question,  involves  and  embodies 
features  and  earmarks  of  judicial  procedure  and  action  in  the  follow- 
ing particulars,  viz. :  First,  a  petition,  corresponding  with  the  petition 
or  bill  in  equity,  is  filed;  second,  notice  is  issued  for,  and  service 
thereof  made  upon,  the  defendant  or  party  complained  of,  conforming 
to,  and  corresponding  with,  the  process  of  subpoena  in  courts  of  the 
United  States,  requiring  such  defendant  to  satisfy  the  complainant,  or 
to  appear  and  answer  the  same ;  third,  the  filing  of  defendant's  answer, 
as  in  equity,  which  makes  up  or  forms  the  issue ;  fourth,  the  issu- 
ance of  subpoenas  requiring  the  attendance  of  witnesses,  or  for  the 
taking  of  depositions,  upon  the  issues  made  up  by  the  answer ;  fifth, 
the  assignment  of  a  time  and  place  for  the  hearing,  when  and  where 
the  parties  appear  in  person  or  by  attorney,  witnesses  are  sworn  and 
examined,  and  arguments  are  made  orally  or  by  brief;  sixth,  when 
the  conclusion  is  reached,  a  written  report,  corresponding  in  all  re- 

"  "The  right  of  appeal  from  the  action  of  boards  in  their  administrative 
character  is  frequently  conferred  by  statute.  The  appeal  in  such  cases  is 
not  permitted  because  the  action  of  the  board  is  considered  judicial;  but  it 
is  granted  as  a  method  of  getting  the  matter  involved  before  a  court,  that  it 
may  be  determined  judicially."  Board  of  Commissioners  of  Huntington  Coun- 
ty V.  Heaston,  144  Ind.  583,  591,  41  N.  E.  457  (1895). 

See,  also,  United  States  v.  Ritchie,  17  How.  .525,  15  L.  Ed.  23G  (1854). 

8  Only  a  portion  of  the  opinion  is  printed. 


14  ADMINISTRATIVE   TOWER   AND   ACTION,  (Part    1 

spects  to  an  opinion,  is  delivered,  filed,  and  published ;  seventh,  the 
order  of  the  commission  is  recorded  by  its  secretary,  as  decrees  in 
equity  are  recorded  by  clerks  of  court ;  and,  eighth,  a  copy  of  such 
order,  under  the  seal  of  the  commission,  issues  to  the  defendant,  re- 
quiring obedience  thereto. 

This  mode  of  procedure  certainly  conforms  in  many  respects  to  the 
regular  practice  of  courts,  and  is  no  doubt  authorized  by  the  law ; 
but  does  it  involve  the  performance  of  judicial  acts,  and  the  exercise 
of  judicial  powers,  by  .the  commission,  as  claimed?  It  is  well  settled 
that  Congress,  in  ordaining  and  establishing  "inferior  courts,"  and 
prescribing  their  jurisdiction,  must  confer  upon  the  judges  appointed 
to  administer  them  the  constitutional  tenure  of  office,  that  of  holding 
"during  good  behavior,"  before  they  can  become  invested  with  any 
portion  of  the  judicial  power  of  the  government;  and  if  the  act  to 
regulate  interstate  commerce  does  in  fact  establish  an  inferior  court, 
the  commissioners  appointed  thereunder  for  certain  fixed  periods  are 
clearly  not  such  judges  as  can  be  invested  with  any  portion  of  the 
judicial  power  of  the  United  States,  and  their  decision  in  matters  af- 
fecting personal  or  property  rights  could  have  no  force  or  validity. 
But  does  the  interstate  commerce  law  undertake  either  to  create  an 
"inferior  court"  or  to  invest  the  commission  appointed  thereunder  with 
judicial  functions?  We  think  not.  While  the  commission  possesses 
and  exercises  certain  powers  and  functions  resembling  those  conferred 
upon  and  exercised  by  regular  courts,  it  is  wanting  in  several  essential 
constituents  of  a  court.  Its  action  or  conclusion  upon  matters  of 
complaint  brought  before  it  for  investigation,  and  which  the  act  desig- 
nates as  the  "recommendation,"  "report,"  "order,"  or  "requirement"  of 
the  board  is  neither  final  nor  conclusive ;  nor  is  the  commission  in- 
vested with  any  authority  to  enforce  its  decision  or  award.  Without 
reviewing  in  detail  the  provisions  of  the  law,  we  are  clearly  of  the 
opinion  that  the  commission  is  invested  with  only  administrative 
powers  of  supervision  and  investigation,  which  fall  far  short  of 
making  the  board  a  court,  or  its  action  judicial,  in  the  proper  sense 
of  the  term.  The  commission  hears,  investigates,  and  reports  upon 
complaints  made  before  it,  involving  alleged  violations  of  or  omission 
of  duty  under  the  act;  but  subsequent  judicial  proceedings  are  con- 
templated and  provided  for,  as  the  remedy  for  the  enforcement,  either 
by  itself  or  the  party  interested,  of  its  order  or  report  in  all  cases  where 
the  party  complained  of  or  against  whom  its  decision  is  rendered 
does  not  yield  voluntary  obedience  tliereto.  By  the  fourteenth  and 
sixteenth  sections  of  the  act  it  is  provided  that  the  report  or  findings 
made  by  the  commission  "should  thereafter,  in  all  judicial  proceed- 
ings, be  deemed  prima  facie  evidence  as  to  each  and  every  fact  found." 

The  commission  is  charged  with  the  duty  of  investigating  and  re- 
porting upon  complaints,  and  the  facts  found  or  -reported  by  it  are 
only  given  the  force  and  weight  of  prima  facie  evidence  in  all  such 
judicial  proceedings  as  may  thereafter  be  required  or  had   for  the 


i 


Ch.  1)        EXECUTIVE,  QUASI  JUDICIAL,  AND   QUASI   LEGISLATIVE.  15 

enforcement  of  its  recommendation  or  order.  The  functions  of  the 
commission  are  those  of  referees  or  special  commissioners,  appointed 
to  make  preHminar}^  investigation  of  and  report  upon  matters  for  sub- 
sequent judicial  examination  and  determination.  In  respect  to  inter- 
state commerce  matters  covered  by  the  law,  the  commission  may  be  re- 
garded as  the  general  referee  of  each  and  every  Circuit  Court  of  the 
United  States,  upon  which  the  jurisdiction  is  conferred  of  enforcing 
the  rights,  duties,  and  obligations  recognized  and  imposed  by  the  act. 
It  is  neither  a  federal  court  under  the  Constitution,  nor  does  it  exer- 
cise judicial  powers,  nor  do  its  conclusions  possess  the  efihcacy  of 
judicial  proceedings.  This  federal  commission  has  assigned  to  it  the 
duties,  and  performs  for  the  United  States,  in  respect  to  that  interstate 
commerce  committed  by  the  Constitution  to  the  exclusive  care  and 
jurisdiction  of  Congress,  the  same  functions  which  state  commis- 
sioners exercise  in  respect  to  local  or  purely  internal  commerce,  over 
which  the  states  appointing  them  have  exclusive  control.  Their  valid- 
ity in  their  respective  spheres  of  operation  stands  upon  the  same 
footing.  The  validity  of  state  commissioners  invested  with  powers  as 
ample  and  large  as  those  conferred  upon  the  federal  commissioners  has 
not  been  successfully  questioned,  when  limited  to  that  local  or  inter- 
nal commerce  over  which  the  states  have  exclusive  jurisdiction ;  and 
no  valid  reason  is  seen  for  doubting  or  questioning  the  authority  of 
Congress,  under  its  sovereign  and  exclusive  power  to  regulate  com- 
merce among  the  several  states,  to  create  like  commissions  for  the 
purpose  of  supervising,  investigating,  and  reporting  upon  matters  or 
complaints  connected  with  or  growing  out  of  interstate  commerce. 
What  one  sovereign  may  do  in  respect  to  matters  within  its  exclusive 
control,  the  other  may  certainly  do  in  respect  to  matters  over  which  it 
has  exclusive  authority. 

We  are  also  clearly  of  opinion,  that  this  court  is  not  made  by  the 
act  the  mere  executioner  of  the  commissioner's  order  or  recommen- 
dation, so  as  to  impose  upon  the  court  a  nonjudicial  power.  *  *  * 
The  principle  announced  in  these  cases  ^  would  sustain  counsel's  posi- 
tion, if  this  court,  under  the  provisions  of  the  interstate  commerce  law, 
is  limited  and  restricted  to  the  mere  ministerial  duty  of  enforcing  an 
order  or  requirement  of  the  commission,  whether  it  be  regarded  as  a 
judicial  or  a  nonjudicial  tribunal.  But  such  is  not,  in  fact,  the  juris- 
diction which  this  court  is  called  upon  to  exercise.  The  suit  in  this 
court  is,  under  the  provisions  of  the  act,  an  original  and  independent 
proceeding,  in  which  the  commission's  report  is  made  prima  facie 
evidence  of  the  matters  or  facts  therein  stated.  It  is  clear  that  this 
court  is  not  confined  to  a  mere  re-examination  of  the  case  as  heard  and 
reported  by  the  commission,  but  hears  and  determines  the  cause  de 
novo,  upon  proper  pleadings  and  proofs,  the  latter  including  not  only 

9  Hayburn's  Case,  2  Dall.  409,  1  L.  Ed.  436  (1792) ;  U.  S.  v.  Ferreira,  13  How. 
40,  14  L.  Ed.  42  (ISol). 


IG  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

the  prima  facie  facts  reported  by  the  commission,  but  all  such  other  and 
further  testimony  as  either  party  may  introduce,  bearing  upon  the 
matters  in  controversy.  The  court  is  empowered  "to  direct  and 
l)rosecute,  in  such  mode  and  by  such  persons  as  it  may  appoint,  all 
such  inquiries  as  the  court  may  think  needful  to  enable  it  to  form  a 
just  judgment  in  the  matter  of  such  petition  ;  and  on  such  hearing  the 
report  of  said  commission  shall  be  prima  facie  (not  conclusive)  evi- 
dence of  the  matters  therein  stated."  No  valid  constitutional  objec- 
tion can  be  urged  against  making  the  findings  of  the  commission  prima 
facie  evidence  in  subsequent  judicial  proceedings.  Such  a  provision 
merely  prescribes  a  rule  of  evidence  clearly  within  well-recognized 
powers  of  the  Legislature,  and  in  no  way  encroaches  upon  the  court's 
proper  functions.^** 


IIARTMAN  V.  MAYOR,  ETC.,  OF  CITY  OF  WILMINGTON. 

(Superior  Court  of  Delaware,  1804.     1  Marv.  215,  41  Atl.  74.) 

Certiorari  by  ]\Iaria  C.  Hartman  against  the  Mayor  and  Council 
of  City  of  Wilmington  to  review  proceedings  of  a  municipal  board  of 
health.     Exceptions  dismissed. 

The  plaintiff  was  the  owner  of  a  dwelling  house  in  the  city  of 
Wilmington,  against  which  proceedings  were  taken  by  the  board  of 
health  for  the  abatement  of  an  alleged  nuisance  resulting  from  a  wet 
cellar.  The  record  upon  which  certiorari  issued  simply  disclosed 
that  the  executive  officer  of  the  board  of  health  reported  the  follow- 
ing nuisance  (among  others):  "M.  C.  Hartman,  705  South  Harrison 
St.,  wet  cellar."     The  provisions  of  the  statutes,  charter,  and  ordi- 

10  See  Sidney  and  Beatrice  Webb,  Tlie  Parisli  and  tlie  County,  p.  419: 
■■Neither  the  individual  magistrate  nor  tlie  divisional  sessions  made  any 
distinction  between  (li  a  judicial  decision  as  to  the  criminality  of  the  past 
conduct  of  particular  individuals ;  (2)  an  administrative  order  to  be  obeyed 
by  otticials ;  and  (3j  a  legislative  resolution  enunciating  a  new  rule  of  con- 
duct.to  be  observed  for  the  future  by  all  concerned.  All  alike  were,  in  theory, 
judicial  acts.  .  Though  many  of  these  orders  were  plainly  discretional,  and 
determined  only  by  the  justices'  views  of  social  expediency,  they  were  all 
assumed  to  be  based  upon  evidence  of  fact,  and  done  in  strict  accordance  with 
law." 

Id.  p.  809:  "And  though,  under  particular  statutes,  individual  justices  or 
pairs  of  justices  could  appoint  parish  officers,  allow  their  accounts,  authorize 
rates,  direct  the  mending  of  founderous  roads,  order  relief  to  a  destitute 
person,  command  a  father  to  pay  a  weekly  sum  for  the  maintenance  of  a 
bastard,  apprentice  a  poor  child,  or  remove  a  pauper  to  his  place  of  settle- 
ment, the  fact  that  there  was  in  all  these  cases  a  right  of  appeal  to  the  Su- 
perior Court  of  Quarter  Sessions  indicates  that,  in  the  eye  of  the  law  'our 
county  rulers  have  been,  not  prefects  controlled  by  a  bureau,  but  justices 
controlled  by  a  court  of  law' ;  that  even  their  apparently  executive  duties 
had  to  be  done  'with  judicial  forms  and  in  a  judicial  spirit';  and  that  their 
most  discretional  orders  partook  of  the  nature  of  judicial  decisions,  to  be 
given  only  on  evidence,  and  'according  to  the  straight  rule  and  course  of  the 
law.' " 

See  La  Croix  v.  County  Oommissiouers,  50  Conn.  321,  324,  325,  47  Am.  Rep. 
G4S  (1SS2). 


Ch.  1)        EXECUTIVE,  QUASI  JUDICIAL,  AND  QUASI  LEGISLATIVE.  17 

nances  bearing  upon  the  subject  are  referred  to  in  the  argument  of 
counsel. 

CuLLEN,  J.  This  is  a  certiorari  under  very  pecuHar  circumstances, 
and  we  will  not  attempt  to  go  into  any  extended  review  of  the  differ- 
ent matters  and  principles  upon  which  this  case  rests,  but  shall  merely 
state  the  general  principles  involved,  upon  which  we  dismiss  these  ex- 
ceptions. 

It  appears  that  there  was  a  proceeding  originally  commenced  under 
an  act  of  assembly  vesting  in  the  board  of  health  of  this  city  certain 
powers  and  authority  in  relation  to  matters  mentioned  under  their  im- 
mediate jurisdiction.  The  result  of  the  action  of  the  board  of  health 
is  not  a  judgment.  This  is  a  power  that  is  conferred  and  which  is 
acted  on  by  the  board  of  health  by  force  of  the  police  power,  which  is 
part  of  the  sovereignty  of  the  state.  The  state  may  delegate  those 
powers,  and  it  has  in  this  case  delegated  to  the  board  of  health  the 
power,  upon  complaint  coming  before  them,  to  determine  whether 
or  not  a  thing  is  deleterious  or  injurious  to  the  community  generally; 
and  they  may  examine  that  matter,  and  inquire  into  and  investigate 
it.  And  upon  this  investigation,  if  the  person  upon  due  notice  does 
not  remove  that  which  is  deleterious — you  may  call  it  a  nuisance — then 
the  board  of  health  have  the  right  to  remove  or  abate  the  nuisance. 

It  is  contended  that  there  was  no  notice  given  in  this  case  before 
they  proceeded.  Every  person,  of  course,  has  his  right  to  a  day  in 
court ;  but  the  board  of  health  act  upon  these  matters  like  a  grand 
jury,  for  instance,  where  there  is  a  charge  against  a  person — on  one 
side  of  the  matter.  When  the  matter  is  determined  by  them,  it  is  not 
a  judgment.  They  simply  determine  that  a  certain  matter  is  a  nui- 
sance. Then,  when  it  is  so  determined,  it  is  their  duty  to  notify  the 
party  that  a  nuisance  exists  on  his  premises,  and  that  he  is  required 
to  remove  it  within  a  certain  time,  which  is  by  them  specified.  The 
act  does  not  prescribe  a  particular  time  in  which  it  must  be  done,  be- 
cause the  time  it  takes  to  remove  it  must  necessarily  depend  upon  the 
nature  and  character  of  the  nuisance  to  be  abated.  Five  days  might 
be  enough  in  one  case,  while  it  might  take  two,  three,  five,  or  six 
months  in  another. 
j  When  it  is  determined  by  the  board  of  health,  acting  under  the 
I  police  power  vested  in  them  by  the  Legislature  or  the  sovereign  power 
i  of  the  state,  that  a  certain  thing  is  a  nuisance,  it  becomes  their  duty 
i  for  the  first  time  to  notify  the  party  of  the  fact  that  a  nuisance  exists 
on  his  place ;  that  is,  notice  is  given  to  him  of  that  fact.  It  is  nothing 
more  or  less,  in  our  judgment,  than  that  "a  nuisance  exists  on  your 
place,  and  we  require  you  to  remove  it  in  so  many  days."  The  party's 
rights  have  not  been  invaded.  It  has  been  a  mere  matter  of  investi- 
gation. And  then  he  may,  if  he  see  fit,  have  his  day  in  court.  He 
has  an  impartial,  full,  and  complete  remedy.  For  the  first  time  the 
case  enters  into  trial  when  both  parties  are  represented.  He  may 
Fe.Adm.Law. — 2 


18  ADMINISTRATIVE   TOWER   AND   ACTION.  (Part    1 

appeal  to  the  chancellor  for  an  injunction  to  stay  the  action,  and  com- 
mence an  action  whereby  his  rights  may  be  determined  by  proceed- 
ings in  chancery.  If  he  sees  fit  to  allow  the  matter  to  go  on,  and  if 
the  board  of  health  have  violated  the  powers  vested  in  them  in  re- 
moving the  matter,  then  they  becom^  personally  liable. 

Were  it  otherwise,  what  would  become  of  the  community,  and  what 
would  police  regulations  amount  to?  Parties  must  act  in  an  emer- 
gency. If  the  board  of  health  act  in  an  emergency,  still  there  is  time 
left  for  the  opposite  party,  if  he  wishes,  to  contest  their  action.  Their 
action  is  not  a  legal  judgment,  such  as  is  contemplated  under  the  law, 
to  which  a  certiorari  at  common  law  may  issue. 

We  think,  therefore,  under  the  circumstances,  that  this  is  not  a 
case  in  which  a  certiorari  would  lie,  and  therefore  dismiss  the  ex- 
ceptions. 


SECTION    4.— SAME— ENFORCING    AND    DIRECTING 
POWERS 


COXE  BROS.  &  CO.  V.  LEHIGH  VALLEY  R.  CO. 

(Interstate  Commerce  Commission  of  tlie  United  States,  1891.    4  Interst.  Com. 
R.  535,  57G.) 

Morrison^  Commissioner.^^  *  *  *  After  submitting  the  pro- 
posed findings  of  fact  for  the  consideration  of  the  Commission,  coun- 
sel for  complainants  in  his  concluding  argument  said :  "As  to  the  un- 
reasonableness of  the  charge,  we  ask  the  Commission  to  find  that  the 
rate  of  $1.80  is  unreasonable  within  the  statute.  We  do  not  ask  or 
care  about  your  honor's  establishing  any  particular  rate.  *  *  =)= 
There  are  a  great  many  ways  in  which  these  coal  rates  can  be  de- 
termined without  fixing  any  arbitrary  or  inflexible  standard.  *  *  * 
If  they  [the  carriers]  are  informed  that  their  present  rate  is  unreason- 
able, they  will  then  meet  the  individual  operators  of  their  districts 
in  consultation,  and  I  am  sure  some  amicable  arrangement  will  be 
reached  by  which  both  parties  can  make  money."     =^     *     * 

Counsel  for  the  road  said  in  reply ;  "That  will  not  do.  If  this  Com- 
mission says  that  the  present  rates  are  unreasonable,  they  must  say 
so  because  there  is  a  different  rate  they  have  determined  to  be  a 
proper  one.  It  will  not  do  for  you  to  make  a  general  finding  and 
to  say :  'The  present  rates  are  unreasonable,  but  we  do  not  know 
what  they  ought  to  be.  We  cannot  fix  them  for  you.  You  must  agree 
upon  them  amongst  yourselves.'  If  unreasonable,  say  to  what  ex- 
tent they  are  unreasonable — whether  to  the  extent  of  a  cent,  or  of 
many  cents,  or  of  a  dollar,  a  ton.    Would  it  be  proper  for  you  to  lay 

11  Only  a  portion  of  tlie  opinion  is  printed. 


Ch.  1)        EXECUTIVE,  QUASI  JUDICIAL,  AND   QUASI   LEGISLATIVE.  19 

down  an  abstract  principle  that  would  lead  to  endless  confusion  in  the 
application?  That  would  put  all  at  chaos.  For  Heaven's  sake  do 
not  ever  make  the  matter  of  the  proper  rates  for  carrying  coal  one 
to  be  regulated  in  a  conference  between  the  carrier  and  the  shipper. 
If  you  have  been  convinced  by  these  petitioners  that  the  present  rates 
are  unreasonable  and  unjust,  then  say  what  the  rates  ought  to  be." 

*      -'r-      -•!; 

Having  declared  the  rates  in  question  to  be  unreasonable,  if  we 
should  act  upon  the  suggestion  of  counsel  for  complainants  and  fix 
upon  none  which  may  be  properly  charged,  the  case  before  the  Com- 
mission would  be  at  an  end  when  the  railroad  company  was  notified 
that  its  rates  were  found  to  be  excessive  and  must  be  modified.  The 
Commission  having  prescribed  no  measure  of  reduction,  any  modi- 
fication made  in  good  faith  would  be  a  compliance  with  the  re- 
quired modification,  yet  it  might  be  unsatisfactory  to  complainants 
and  other  operators  and  fall  short  of  what  the  law  requires.  Then 
the  occasion  would  be  presented  when  the  operators  and  carriers 
might  meet  and  amicably  arrange  what  the  charges  should  be  in  ac- 
cordance with  the  suggestion  of  complainants'  counsel. 

In  such  a  meeting  or  conference  of  operators  and  carriers,  where 
possible  conflict  of  interest  and  opinion  could  arise,  it  might  and  most 
likely  would  occur  that  no  satisfactory  arrangement  would  be  reached, 
and  another  application  to  the  Commission  would  be  necessary  to  de- 
clare the  reduced  rates  still  unreasonable.  This  process  would  need 
to  be  repeated  until  the  legal  rate  was  established  by  successive  re- 
ductions, made  in  compliance  with  a  series  of  determinations  of  the 
Commission  that  the  rates  were  unreasonable. 

In  the  case  under  consideration  suppose  the  facts  to  be,  as  claimed, 
that  the  charges  are  excessive  as  much  or  more  than  50  cents.  Un- 
der the  rule  suggested  by  complainants'  counsel,  when  the  rate  was 
ascertained  to  be  unreasonable  it  would  be  so  declared,  and  left  with 
the  shipper  and  carrier  for  amicable  arrangement.  If  for  any  reason 
no  scale  of  charges  was  agreed  upon  the  rate  would  remain  for  deter- 
mination by  the  carrier  whose  rate  is  challenged.  Under  such  a  rule 
applied  to  the  subject  of  this  complaint  five  several  proceedings  would 
be  necessary  to  establish  the  reasonable  rate  if  in  each  proceeding  the 
carrier  deemed  a  10-cent  reduction  sufficient.  If,  impressed  with  the 
belief  that  the  existing  rates  were  not  exorbitant,  the  carrier  should 
attempt  compliance  with  the  Commission's  conclusion  that  they  were 
excessive  by  making  the  least  possible  reductions,  repeated  and  con- 
tinual applications  would  be  necessary  to  correct  a  single  abuse.  Cer- 
tainly Congress  intended  no  such  absurdity  as  this;  but,  as  insisted 
upon  by  counsel  for  the  road,  when  we  have  been  convinced  that  rates 
are  unjust,  it  will  be  our  duty  to  say  what  they  ought  to  be,  or  at 
least  to  determine  upon  some  rate,  any  charge  in  excess  of  which 
would  be  unreasonable.  If  the  duty  of  the  Commission  in  respect  to 
unjust  and  unlawful  rates  ends  when  it  has  been  convinced  that  rates 


20  ADMINISTRATIVE  POWER  AND  ACTION.  (Part    1 

are  unreasonable,  and  so  decided  them  to  be,  and  for  any  reason  the 
Commission  may  not  determine  what  are,  as  well  as  what  are  not, 
reasonable,  the  regulation  provided  by  the  statute  begins  with  com- 
plaint and  ends  in  confusion. 

The  act  to  regulate  commerce,  which  declares  every  imjust  and 
unreasonable  charge  to  be  unlawful,  and  requires  its  provision  to  be 
enforced  by  the  Commission,  confers  the  power  to  determine,  and  im- 
poses on  the  Commission  the  duty  of  determining,  what  are  the  rea- 
sonable rates  which  the  charges  may  not  exceed,  as  well  as  what  are 
unreasonable.     '""    *    * 


INTERSTATE  COMMERCE  COMMISSION  v.   CINCINNATI. 
N.  O.  &  T.  P.  RY.  CO. 

(Supreme  Court  of  United  States,  1897.     1G7  U.  S.  479,  17  Sup.  Ct.  S9G,  42 
L.  Ed.  24.3.) 

Mr,  Justice  Brewer  delivered  the  opinion  of  the  court.'-  '■'  *  * 
It  is  one  thing  to  inquire  whether  the  rates  which  have  been  charged 
and  collected  are  reasonable — that  is  a  judicial  act;  but  an  entirely 
dififerent  thing  to  prescribe  rates  which  shall  be  charged  in  the  future 
— that  is  a  legislative  act.  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minne- 
sota, 134  U.  S.  418,  458,  10  Sup.  Ct.  462,  702,  33  L.  Ed.  970 ;  Reagan 
V.  Trust  Co.,  154  U.  S.  362,  397,  14  Sup.  Ct.  1047,  38  L.  Ed.  1014; 
Railway  Co.  v.  Gill,  156  U.  S.  649,  663,  15  Sup.  Ct.  484,  39  L.  Ed. 
567 ;  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v.  Interstate  Commerce  Com- 
mission, 162  U.  S.  184,  196,  16  Sup.  Ct.  700,  40  L.  Ed.  935 ;  Texas 
&  P.  Ry.  Co.  V.  Same,  162  U.  S.  197,  216,  16  Sup.  Ct.  666,  40  h. 
Ed.  940;  Munn  v.  Illinois,  94  U.  S.  113,  144,  24  L.  Ed.  77;  Peik  v. 
Railway  Co.,  94  U.  S.  164,  178,  24  L.  Ed.  97;  Express  Cases,  117  U. 
S.  1,  29,  6  Sup.  Ct.  542,  628,  29  L.  Ed.  791. 

It  will  be  perceived  that  in  this  case  the  Interstate  Commerce  Com- 
mission assumed  the  right  to  prescribe  rates  which  should  control 
in  the  future,  and  their  application  to  the  court  was  for  a  mandamus 
to  compel  the  companies  to  comply  with  their  decision;  that  is,  to 
abide  by  their  legislative  determination  as  to  the  maximum  rates  to  be 
observed  in  the  future.  Now,  nowhere  in  the  interstate  commerce 
act  do  we  find  words  similar  to  those  in  the  statute  referred  to,  giving 
to  the  commission  power  to  "increase  or  reduce  any  of  the  rates" ;  "to 
establish  rates  of  charges" ;  "to  make  and  fix  reasonable  and  just 
rates  of  freight  and  passenger  tariffs" ;  "to  make  a  schedule  of  rea- 
sonable maximum  rates  of  charges" ;  "to  fix  tables  of  maximum  char- 
ges" ;  to  compel  the  carrier  "to  adopt  such  rate,  charge  or  classification 
as  said  commissioners  shall  declare  to  be  equitable  and  reasonable.'' 
The  power,  therefore,  is  not  expressly  given.  Whence  then  is  it  de- 
duced ? 

12  Only  a  portion  of  the  opinion  is  printed. 


Ch.  1)        EXECUTIVE,  QUASI   JUDICIAL,  AND   QUASI   LEGISLATIVE.  21 

In  the  first  section  it  is  provided  that  "all  charges  *  *  *  shall 
be  reasonable  and  just;  and  every  unjust  and  unreasonable  charge 
for  such  service  is  prohibited  and  declared  to  be  unlawful."  Then 
follow  sections  prohibiting-  discrimination,  undue  preferences,  higher 
charges  for  a  short  than  for  a  long  haul,  and  pooling,  and  also  making 
provision  for  the  preparation  by  the  companies  of  schedules  of  rates, 
and  requiring  their  publication.  Section  11  creates  the  Interstate 
Commerce  Commission.  Section  12,  as  amended  March  3,  1889  (25 
Stat.  858),  gives  it  authority  to  inquire  into  the  management  of  the 
business  of  all  common  carriers,  to  demand  full  and  complete  in- 
formation from  them,  and  adds,  ''and  the  commission  is  hereby  au- 
thorized to  execute  and  enforce  the  provisions  of  this  act." 

And  the  argument  is  that,  in  enforcing  and  executing  the  provi- 
sions of  the  act,  it  is  to  execute  and  enforce  the  law  as  stated  in  the 
first  section,  which  is  that  all  charges  shall  be  reasonable  and  just, 
and  that  every  unjust  and  unreasonable  charge  is  prohibited;  that  it 
cannot  enforce  this  mandate  of  the  law  without  a  determination  of 
what  are  reasonable  and  just  charges,  and,  as  no  other  tribunal  is 
created  for  such  determination,  therefore  it  must  be  implied  that  it 
is  authorized  to  make  the  determination,  and,  having  made  it,  apply 
j  to  the  courts  for  a  mandamus  to  compel  the  enforcement  of  such  de- 
termination. In  other  words,  that  though  Congress  has  not,  in  terms. 
given  the  commission  the  power  to  determine  what  are  just  and  rea- 
sonable rates  for  the  future,  yet,  as  no  other  tribunal  has  been  pro- 
vided, it  must  have  intended  that  the  commission  should  exercise  the 
power. 

We  do  not  think  this  argument  can  be  sustained.  If  there  were 
nothing  else  in  the  act  than  the  first  section,  commanding  reasonable 
rates,  and  the  twelfth,  empowering  the  commission  to  execute  and 
enforce  the  provisions  of  the  act,  we  should  be  of  the  opinion  that 
Congress  did  not  intend  to  give  to  the  commission  the  power  to  pre- 
scribe any  tarifif,  and  determine  what  for  the  future  should  be  reason- 
able and  just  rates.  The  power  given  is  the  power  to  execute  and  en- 
force, not  to  legislate.  The  power  given  is  partly  judicial,  partly  ex- 
ecutive and  administrative,  but  not  legislative.  Pertinent  in  this  re- 
spect are  these  observations  of  counsel  for  the  appellees : 

"Article  2,  §  3,  of  the  Constitution  of  the  United  States,  ordains 
that  the  President  'shall  take  care  that  the  laws  be  faithfully  executed.' 
The  act  to  regulate  commerce  is  one  of  those  laws.  But  it  will  not 
be  argued  that  the  president,  by  implication,  possesses  the  power  to 
make  rates  for  carriers  engaged  in  interstate  commerce.    ='■     ■■'    '■= 

"The  first  section  simply  enacted  the  common-law  requirement  that 
all  charges  shall  be  reasonable  and  just.  For  more  than  a  hundred 
years  it  has  been  the  affirmative  duty  of  the  courts  'to  execute  and 
enforce'  the  common-law  requirement  that  'all  charges  shall  be  rea- 
sonable and  just,'  and  yet  it  has  never  been  claimed  that  the  courts,  by 
implication,  possessed  the  power  to  make  rates  for  carriers."    *     =^     * 


22  ADMIXISTHATIVE   TOWER   AND   ACTION.  (Part    1 

We  have,  therefore,  these  considerations  presented : 

First.  The  power  to  prescribe  a  tariff  of  rates  for  carriage  by  a 
common  carrier  is  a  legislative,  and  not  an  administrative  or  judicial, 
function,  and,  having  respect  to  the  large  amount  of  property  in- 
vested in  railroads,  the  various  companies  engaged  therein,  the  thou- 
sands of  miles  of  road,  and  the  millions  of  tons  of  freight  carried, 
the  varying  and  diverse  conditions  attaching  to  such  carriage,  is  a 
power  of  supreme  delicacy  and  importance. 

Second.  That  Congress  has  transferred  such  a  power  to  any  ad- 
ministrative body  is  not  to  be  presumed  or  implied  from  any  doubtful 
and  uncertain  language.  The  words  and  phrases  efficacious  to  make 
such  a  delegation  of  power  are  well  understood,  and  have  been  fre- 
quently used,  and,  if  Congress  had  intended  to  grant  such  a  power 
to  the  Interstate  Commerce  Commission,  it  cannot  be  doubted  that  it 
would  have  used  language  open  to  no  misconstruction,  but  clear  and 
direct. 

Third.  Incorporating  into  a  statute  the  common-law  obligation  rest- 
ing upon  the  carrier  to  make  all  its  charges  reasonable  and  just,  and 
directing  the  commission  to  execute  and  enforce  the  provisions  of 
the  act,  does  not  by  implication  carry  to  the  commission,  or  invest  it 
with  the  power  to  exercise,  the  legislative  function  of  prescribing  rates 
which  shall  control  in  the  future. 

Fourth.  Beyond  the  inference  which  irresistibly  follows  from  the 
omission  to  grant  in  express  terms  to  the  commission  this  power  of 
fixing  rates  is  the  clear  language  of  section  6,  recognizing  the  right  of 
the  carrier  to  establish  rates,  to  increase  or  reduce  them,  and  pre- 
scribing the  conditions  upon  which  such  increase  or  reduction  may  be 
made,  and  requiring,  as  the  only  conditions  of  its  action — First,  pub- 
lication ;  and,  second,  the  filing  of  the  tariff  with  the  commission.  The 
grant  to  the  commission  of  the  power  to  prescribe  the  form  of  the 
schedules,  and  to  direct  the  place  and  manner  of  publication  of  joint 
rates,  thus  specifying  the  scope  and  limit  of  its  functions  in  this  re- 
spect, strengthens  the  conclusion  that  the  power  to  prescribe  rates 
or  fix  any  tariff  for  the  future  is  not  among  the  powers  granted  to 
the  commission. 

■  These  considerations  convince  us  that  under  the  interstate  com- 
merce act  the  commission  has  no  power  to  prescribe  the  tariff  of  rates 
which  shall  control  in  the  future,  and  therefore  cannot  invoke  a  judg- 
ment in  mandamus  from  the  courts  to  enforce  any  such  tariff  by  it 
prescribed. 

But  has  the  commission  no  functions  to  perform  in  respect  to  the 
matter  of  rates,  no  power  to  make  any  inquiry  in  respect  thereto? 
Unquestionably  it  has,  and  most  important  duties  in  respect  to  this 
matter.  It  is  charged  with  the  general  duty  of  inquiring  as  to  the 
management  of  the  business  of  railroad  companies,  and  to  keep  it- 
self informed  as  to  the  manner  in  which  the  same  is  conducted,  and 
has  the  right  to  compel  complete  and  full  information  as  to  the  man- 


Ch.  1)        EXECUTIVE,  QUASI  JUDICIAL,  AND   QUASI   LEGISLATIVE.  23 

ner  in  which  such  carriers  are  transacting  their  business.  And,  with 
this  knowledg-e,  it  is  charged  with  the  duty  of  seeing  that  there  is  no 
violation  of  the  long  and  short  haul  clause ;  that  there  is  no  discrim- 
ination between  individual  shippers,  and  that  nothing  is  done,  by  re- 
bate or  any  other  device,  to  give  preference  to  one  as  against  another ; 
that  no  undue  preferences  are  given  to  one  place  or  places  or  individual 
or  class  of  individuals,  but  that  in  all  things  that  equality  of  right, 
which  is  the  great  purpose  of  the  interstate  commerce  act,  shall  be 
secured  to  all  shippers.  It  must  also  see  that  that  publicity  which  is 
required  by  section  6  is  observed  by  the  railroad  companies.  Holding 
the  railroad  companies  to  strict  compliance  with  all  these  statutory 
provisions,  and  enforcing  obedience  to  all  these  provisions,  tends, 
as  observed  by  Commissioner  Cooley  in  Re  Chicago,  St.  P.  &  K.  C.  Ry. 
Co.,  2  Interst.  Com.  R.  231,  261,  to  both  reasonableness  and  equality 
of  rate,  as  contemplated  by  the  interstate  commerce  act. 

We  have  not  overlooked  the  statute  of  Nebraska,  nor  the  decision  of 
the  Supreme  Court  of  that  state  in  respect  thereto.  This  statute  was 
approved  March  31,  1887,  a  few  weeks  after  the  passage  of  the  inter- 
state commerce  act  (Laws  Neb.  1887,  p.  54:0),  and  was  obviously  largely 
patterned  upon  that  act.  The  general  obligations  incorporated  into 
that  act  in  respect  to  reasonableness  of  rates,  prohibitions  of  discrim- 
ination, undue  preferences,  etc.,  are  all  in  the  Nebraska  statute.  A 
commission,  called  "a  board  of  transportation,"  is  also  provided  for 
(section  11),  and  is  charged  with  the  general  duty  of  enforcing  the 
act  and  supervising  the  railroad  companies  in  the  state.  Section  17, 
which  is  more  full  and  specific  than  any  to  be  found  in  the  interstate 
commerce  act,  provides  that  ''said  board  shall  have  the  general  super- 
vision of  all  railroads  operated  by  steam  in  the  state,  and  shall  in- 
quire into  any  neglect  of  duty  or  violation  of  any  of  the  laws  of  this 
state  by  railroad  corporations.  *  =i=  =i=  jj-  shall  carefully  investigate 
any  complaint  made  in  writing,  and  under  oath,  concerning  any  lack 
of  facilities,  *  ''^  *  or  against  any  unjust  discrimination  against 
either  any  person,  firm,  or  corporation  or  locality,  either  in  rates,  fa- 
cilities furnished  or  otherwise;  and  whenever,  in  the  judgment  of  said 
board  *  =^  '■'  any  change  in  the  mode  of  conducting  its  business 
or  operating  its  road  is  reasonable  and  expedient  in  order  to  promote 
the  security  and  accommodation  of  the  public,  or  in  order  to  prevent 
unjust  discriminations  against  either  persons  or  places;  it  shall  make 
a  finding  of  the  facts,  and  an  order  requiring  said  railroad  corporation 
to  make  such  repairs,  improvements,"  etc. 

In  State  v.  Fremont,  E.  &  M.  V.  R.  Co.,  22  Neb.  313,  35  N.  W.  118, 
it  appeared  that  the  board  of  transportation  had  found  that  certain 
rates  enforced  upon  the  road  of  the  defendant  company  were  excessive, 
and  that  certain  other  rates,  less  than  those  in  force,  were  reasonable 
and  just.  On  application  to  the  supreme  court  it  was  held  that  the 
state  was  entitled  to  a  mandamus  compelling  obedience  to  such  deter- 
mination, the  court  observing  (page  329,  22  Neb.,  and  page  125,  35 


24  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

N.  W.) :  "In  the  case  under  consideration  the  board  found  that  the 
rates  and  charges  of  the  respondent  were  excessive;  in  other  words, 
that  there  was  unjust  discrimination  against  that  part  of  the  state,  and, 
having  so  found,  the  board  is  clothed  with  ample  power  to  require 
such  railway  company  to  reduce  its  rates  and  charges.  The  power  of 
the  board,  therefore,  to  establisli  and  regulate  rates  and  charges  up- 
on railways  within  the  state  of  Nebraska  is  full,  ample,  and  complete."' 

Without  criticising  in  the  least  the  logic  of  this  decision,  it  is  enough 
to  say  that  it  is  based  upon  a  section  which  gives  wider  and  more  com- 
prehensive power  to  the  supervising  board  than  is  given  in  the  inter- 
state commerce  act  to  the  commission,  and  does  not  justify  the  in- 
ference that  the  latter  has  the  same  power  in  respect  to  prescribing 
rates  that  by  such  decision  was  declared  belonging  to  the  Nebraska 
board  of  transportation. 

Some  reliance  was  placed  in  the  argument  on  this  sentence,  found  in 
the  opinion  of  this  court  in  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v.  In- 
terstate Commerce  Commission,  163  U.  S.  184,  19G,  16  Sup.  Ct.  700, 
705,  40  Iv.  Ed.  935 :  "If  the  commission,  instead  of  withholding  judg- 
ment in  such  a  matter  until  an  issue  shall  be  made  and  the  facts  found, 
itself  fixes  a  rate,  that  rate  is  prejudged  by  the  commission  as  rea- 
sonable." And  it  is  thought  that  this  court  meant  thereby  that,  while 
the  commission  was  not  in  the  first  instance  authorized  to  fix  a  rate, 
yet  that  it  could,  whenever  complaint  of  an  existing  rate  was  made, 
give  notice  and  direct  a  hearing,  and  upon  such  hearing  determine 
whether  the  rate  established  was  reasonable  or  unreasonable,  and  also 
what  would  be  a  reasonable  rate  if  the  one  prescribed  was  found  not  to 
be,  and  that  such  order  could  be  made  the  basis  of  a  judgment  in 
mandamus  requiring  the  carrier  thereafter  to  conform  to  such  new 
rate.  And  the  argument  is  now  made,  and  made  with  force,  that, 
while  the  commission  may  not  have  the  legislative  power  of  establish- 
ing rates,  it  has  the  judicial  power  of  determining  that  a  rate  already 
established  is  unreasonable,  and  with  it  the  power  of  determining 
what  should  be  a  reasonable  rate,  and  enforce  its  judgment  in  this  re- 
spect by  proceedings  in  mandamus. 

The  vice  of  this  argument  is  that  it  is  building  up  indirectly,  and 
by  implication,  a  power  which  is  not,  in  terms,  granted.  It  is  not  to  be 
supposed  that  Congress  would  ever  authorize  an  administrative  body 
to  establish  rates  without  inquiry  and  examination;  to  evolve,  as  it 
were,  out  of  its  own  consciousness,  the  satisfactory  solution  of  the 
difficult  problem  of  just  and  reasonable  rates  for  all  the  various  roads 
in  the  country.  And,  if  it  had  intended  to  grant  the  power  to  es- 
tablish rates,  it  would  have  s^id  so  in  unmistakable  terms.  In  this 
connection  it  must  be  borne  in  mind  that  the  commission  is  not  limited 
in  its  inquiry  and  action  to  cases  in  which  a  formal  complaint  has  been 
made,  but,  under  section  13,  "may  institute  any  inquiry  on  its  own  mo- 
tion in  the  same  manner  and  to  the  same  effect  as  though  complaint 
had  been  made."     By  section  14,  whenever  an  investigation  is  made 


Ch.  1)        EXECUTIVE,  QUASI  JUDICIAL,  AND   QUASI   LEGISLATIVE.  25 

by  the  commission  it  becomes  its  duty  to  make  a  report  in  writing, 
which  shall  incUide  a  finding  of  the  facts  upon  which  its  conckisions 
are  based,  together  with  a  recommendation  as  to  what  reparation,  if 
an}',  ought  to  be  made  to  any  party  or  parties  who  may  be  found  to 
liave  been  injured.  And  by  sections  15  and  IG,  if  it  appears  to  the 
satisfaction  of  the  commission  that  anything  has  been  done  or  omitted 
to  be  done  in  violation  of  the  provisions  of  the  act,  or  of  any  law 
cognizable  by  the  commission,  it  is  made  its  duty  to  cause  a  copy  of  its 
report  to  be  delivered  to  the  carrier,  with  notice  to  desist,  and,  failing 
that,  to  apply  to  the  courts  for  an  order  compelling  obedience. 

There  is  nothing  in  the  act  requiring  the  commission  to  proceed 
singly  against  each  railroad  company  for  each  supposed  or  alleged 
violation  of  the  act.  In  this  very  case  the  order  of  the  commission  was 
directed  against  a  score  or  more  of  companies,  and  determined  the 
maximum  rates  on  half  a  dozen  classes  of  freight  from  Cincinnati  and 
Chicago  respectively,  to  several  named  Southern  points  and  the  ter- 
ritory contiguous  thereto,  so  that  if  the  power  exists,  as  is  claimed, 
there  would  be  no  escape  from  the  conclusion  that  it  would  be  within 
the  discretion  of  the  commission  of  its  own  motion  to  suggest  that  the 
interstate  rates  on  all  the  roads  in  the  country  were  unjust  and  unrea- 
sonable, notify  the  several  roads  of  such  opinion,  direct  a  hearing, 
and  upon  such  hearing  make  one  general  order,  reaching  to  every  road 
and  covering  every  rate.  It  will  never  do  to  make  a  provision  prescrib- 
ing the  mode  and  manner  applicable  to  all  investigations  and  all  actions 
equivalent  to  a  grant  of  power  in  reference  to  some  specific  matter 
not  otherwise   conferred.     '■'     *     * 

Our  conclusion,  then,  is  that  Congress  has  not  conferred  upon  the 
commission  the  legislative  power  of  prescribing  rates,  either  maximum 
or  minimum  or  absolute.  As  it  did  not  give  the  express  power  to  the 
commission,  it  did  not  intend  to  secure  the  same  result  indirectly  by  em- 
powering that  tribunal  to  determine  what  in  reference  to  the  past  was 
reasonable  and  just,  whether  as  maximum,  minimum,  or  absolute,  and 
then  enable  it  to  obtain  from  the  courts  a  peremptory  order  that  in  the 
future  the  railroad  companies  should  follow  the  rates  thus  determined 
to  have  been  in  the  past  reasonable  and  just. 

The  question  certified  must  be  answered  in  the  negative,  and  it  is  so 
ordered.^^ 

Mr.  Justice  Harlan  dissented. 

13  Section  15  of  the  interstate  commerce  act  of  1SS7  (Act  Feb.  4,  1SS7.  c. 
104,  24  Stat.  384  [U.  S.  Comp.  St.  1901,  p.  SlGo])  read,  until  1906,  as  follows: 
"If  in  any  case  in  which  an  investigation  shall  be  made  by  said  commission  it 
shall  be  made  to  appear  to  the  satisfaction  of  the  commission,  either  by  the 
testimony  of  witnesses  or  other  evidence,  that  anything  has  been  done  or  omit- 
ted to  be  done  in  violation  of  the  provisions  of  this  act,  or  of  any  law  cognizable 
by  said  commission,  by  any  common  carrier,  or  that  any  injury  or  damage  has 
been  sustained  by  the  party  or  parties  complaining,  or  by  other  parties  ag- 
grieved in  consequence  of  any  such  violation,  it  shall  be  the  duty  of  the  com- 
mission to  forthwith  cause  a  copy  of  its  report  in  respect  thereto  to  be  de- 
livered to  such  common  carrier,  together  with  a  notice  to  said  common  car- 


ADMINISTRATIVE  POWER  AND  ACTION.  (Part   1 


ECKHARDT  v.  CITY  OF  BUFFALO. 

(Supreme  Court  of  New  York,  Appellate  Division,  Fourth  Department,  1897. 
19  App.  Div.  1,  46  N.  Y.  Supp.  204.) 

Green,  J.^*  By  section  237  of  the  city  charter  "the  commissioner 
^hall  have  full  power  to  enforce  and  carry  out  all  ordinances,  rules 
and  regulations  for  the  preservation  of  the  public  health,  *  :)=  * 
and  in  case  any  business  or  practice  is  dangerous  or  detrimental  to  the 
public  health,  to  prohibit  the  same,  and  to  declare  unwholesome 
grounds,  yards,  cellars,  buildings  and  other  places,  stagnant  or  un- 
wholesome waters,  filth  and  unwholesome  matter  injurious  to  health,  to 
be  nuisances,  and  upon  so  declaring,  the  commissioner  shall  have  power 
to  abate  the  same  in  such  manner  as  he  may  deem  expedient,  and  the 
expense  may  be  assessed  upon  the  lands  upon  or  in  front  of  which 
such  nuisances  were,  or  upon  the  parcels  of  land  benefited  by  the  abate- 
ment of  the  nuisance,  as  the  common  council  shall  direct."  Laws 
1891,  c.  105. 

rier  to  cease  and  desist  from  such  violation,  or  to  make  reparation  for  the 
injury  so  found  to  have  been  done,  or  both,  within  a  reasonable  time,  to  be 
specified  by  the  commission ;  and  if.  within  the  time  specified,  it  shall  be 
made  to  appear  to  the  commission  that  such  common  carrier  has  ceased  from 
such  violation  of  law,  and  has  made  reparation  for  the  injury  found  to  have 
been  done,  in  compliance  with  the  report  and  notice  of  the  commission,  or  to 
the  satisfaction  of  the  party  complaining,  a  statement  to  that  effect  shall  be 
entered  of  record  by  the  commission,  and  the  said  common  carrier  shall 
thereupon  be  relieved  from  further  liability  or  penalty  for  such  particular 
violation  of  law." 

This  provision  was  changed  by  Act  June  29,  1906,  c.  3591,  §  4,  34  Stat.  589 
(U.  S.  Comp.  St.  Supp.  1900,  p.  1158),  as  follows:  "The  commission  is  au- 
thorized and  empowered,  and  it  shall  be  its  duty,  whenever,  after  full  hear- 
ing upon  a  complaint  made  as  provided  in  section  13  of  this  act,  or  of  any 
common  carrier,  it  shall  be  of  the  opinion  that  any  of  the  rates,  or  charges 
whatsoever,  demanded,  charged,  or  collected  by  any  common  carrier  or  carri- 
ers, subject  to  the  provisions  of  this  act,  for  the  transportation  of  persons  or 
propertj',  *  *  *  or  that  any  regulations  or  practices  whatsoever  *  *  * 
affecting  such  rates,  are  unjust  or  unreasonable,  or  unjustly  discriminatory, 
or  unduly  preferential  or  prejudicial,  or  otherwise  in  violation  of  any  of  the 
provisions  of  this  act,  to  determine  and  prescribe  what  will  be  the  just  and 
reasonable  rate  or  rates,  charge  or  charges,  to  be  thereafter  observed  in  such 
case  as  the  maximum  to  be  charged ;  and  what  regulation  or  practice  in 
respect  to  such  transportation  is  just,  fair,  and  reasonable  to  be  thereafter 
followed ;  and  to  make  an  order  that  the  carrier  shall  cease  and  desist  from 
such  violation,  to  the  extent  to  which  the  commission  find  the  same  to  exist. 
and  shall  not  thereafter  publish,  demand  or  collect  any  rate  or  charge  for 
su<-h  transportation  in  excess  of  the  maximum  rate  or  charge  so  prescribed, 
and  shall  conform  to  the  regulation  or  practice  so  prescribed.  All  orders  of 
the  commission,  except  orders  for  the  payment  of  money,  shall  take  effect 
within  such  reasonable  time,  not  less  than  thirty  days,  and  shall  continue  in 
force  for  such  period  of  time  not  exceeding  two  years,  as  shall  be  prescribed 
in  the  order  of  the  commission,  unless  the  same  shall  be  suspended  or  modi- 
tied  or  set  aside  by  the  commission  or  be  suspended  or  set  aside  by  a  court 
of  competent  jurisdiction." 

Compare  In  re  .Janvrin,  174  Mass.  514,  55  N.  E.  381,  47  L.  R.  A.  319  (1899) ; 
People,  ex  rel.  Central  Park,  N.  &  E.  R.  Co.  v,  Willcox,  194  N.  Y.  383,  87  N. 
E.  517  (1909) ;  State  v.  Johnson,  01  Kan.  803,  60  Pac.  1068,  49  L.  R.  A.  663 
(1900). 

14  The  statement  of  facts  and  a  portion  of  the  opinion  are  omitted. 


Cll.  1)        EXECUTIVE,  QUASI   JUDICIAL,  AND   QUASI   LEGISLATIVE.  27 

The  question  for  determination  is  whether,  under  the  general  power 
to  declare  certain  matters  and  things  to  be  nuisances,  and  to  abate 
the  same  in  such  manner  as  the  official  may  deem  expedient,  the 
power  may  be  implied  to  cause  new  erections  to  be  made,  new  ap- 
])liances,  apparatus,  and  contrivances  to  be  used,  and  new  improve- 
ments to  be  adopted,  all  in  accordance  with  supposed  scientific  prin- 
ciples of  sanitation,  and  to  ciiarge  the  expense,  however  costly  it  may 
be,  to  the  landowner,  whether  he  will  or  no.  The  question  is  not 
whether  the  health  commissioner  had  power  to  cause  or  order  privies 
to  be  put  into  a  proper  and  decent  state,  if  not  in  that  state;  but  is 
whether  he  has  the  right  or  power  to  force  on  the  landowner  the 
mechanical  contrivance  of  water-closets,  with  all  their  requisites  and 
accessories,  instead  of  the  privies,  which,  sufficient  as  privies,  if  kept 
in  the  condition  proper  for  such  conveniences,  are  on  his  lands  for  the 
])urposes  of  his  building  there.     *     *     * 

Defendant  relies  upon  the  cases  of  Ex  parte  Saunders,  11  Q.  B.  Div. 
101;  Reg.  V.  Llewellyn,  13  Q.  B.  Div.  681;  Reg.  v.  Wheatley,  16  Q. 
B.  Div.  31;  St.  Luke's  Vestry  v.  Lewis,  1  Best  &  S.  865  ;  Hargreaves 
V.  Taylor,  3  Best  &  S.  613.  But  the  statutes  under  which  these  deci- 
sions were  made  expressly  conferred  upon  the  local  authorities  the  im- 
portant and  extensive  powers  here  claimed  to  exist  by  implication  from 
the  simple  power  to  abate  nuisances.  The  public  health  act  provided 
that  the  local  authority  should  serve  on  the  owner  or  occupier  of  the 
premises  on  which  the  nuisance  arises  a  notice  requiring  him  to  abate 
the  same  within  a  time  specified,  and  to  execute  such  works  and  do 
such  things  as  may  be  necessary  for  that  purpose.  Upon  default  in 
complying  with  the  requisitions  of  the  notice,  or  if  the  nuisance,  al- 
though abated,  is,  in  the  opinion  of  the  local  authority,  likely  to  recur  on 
the  same  premises,  the  latter  shall  complain  to  a  justice,  and  the  justice 
shall  summon  such  person  to  appear  before  a  court  of  summary  juris- 
diction. The  court,  if  satisfied  that  the  alleged  nuisance  exists,  or 
that,  although  abated,  it  is  likely  to  recur,  shall  make  an  order  requir- 
ing such  person  to  comply  with  all  or  any  of  the  rec[uisitions  of  the 
notice,  or  otherwise  to  abate  the  nuisance,  within  a  time  specified  in 
the  order,  and  to  do  any  work  necessary  for  that  purpose.  A  penalty 
was  imposed  for  noncompliance  with  the  order.  Other  sections  of 
the  statute  (which  were  not  involved  in  any  of  these  decisions)  enabled 
the  local  authority  to  require  particular  things  to  be  erected,  by  order- 
ing that  a  sufficient  water-closet,  earth-closet  or  privy  should  be  pro- 
vided, "and  the  appeal  against  an  order  under  those  sections  is  to  the 
central  board,  who  have  better  capabilities  of  dealing  with  the  pro- 
priety of  such  orders  than  the  magistrates."  Ex  parte  Whitchurch, 
6  Q.  B.  Div.  515.  It  was  held,  however,  that  the  order  of  the  magis- 
trates must  specify  what  works  and  things  the  owner  should  execute 
and  do  for  the  purpose  of  not  only  abating  the  nuisance,  but  also  to 
effectually  prevent  its  recurrence.  Reg.  v.  Wheatley,  16  Q.  B.  Div. 
31.     *     *     * 


28  ADMINISTIJATIVR   POWER   AND   ACTION.  (Part    1 

The  (lecision  in  Ex  parte  Whitchurch  has  very  pertinent  apphcation 
to  a  case  where,  as  here,  no  express  statutory  power  has  been  conferred 
upon  the  local  sanitary  authorities  to  direct  the  execution  of  such 
works,  and  to  require  such  things  to  be  done,  as  they  may  deem  nec- 
essary to  abate  or  remove  the  nuisance  and  also  to  efifectually  prevent 
its  recurrence.  It  clearly  indicates  that,  in  the  absence  of  any  such 
legislative  authority  conferred,  the  acts  of  the  health  commissioner 
in  this  case  were  without  legal  sanction,  and  constituted  a  plain  usurpa- 
tion of  power.  And  a  reference  to  the  English  act  and  the  decisions 
thereunder  is  important  for  various  reasons.  No  such  extensive 
powers  as  these  existed  at  common  law,  and  it  was  therefore  deemed 
necessary  or  expedient  to  create  and  confer  them  by  act  of  parliament. 
A  mere  general  power  to  abate  nuisances  in  such  manner  as  the  sani- 
tary boards  should  deem  expedient  would  hardly  accomplish  the  pur- 
poses desired,  or  attain  the  beneficent  objects  within  the  contemplation 
of  the  Parliament.  Nothing  should  be  left  to  implication,  but  ample 
powers  of  regulation  and  direction  should  be  conferred  in  express 
terms.  The  assumption  or  usurpation  of  power  by  the  local  authorities 
upon  grounds  of  supposed  expediency  or  necessity  of  the  case  ought 
not  to  be  sanctioned,  but  the  power  should  be  expressly  conferred.  The 
right  of  landowners  to  manage,  improve,  or  alter  their  property  and 
buildings  in  such  manner  as  they  may  deem  fit  and  proper  ought  not 
to  be  interfered  with  or  controlled  by  local  officials,  except  in  pursuance 
of  legislative  enactment  conferring  the  power  and  regulating  its  ex- 
ercise. The  power  should  not  be  left  to  the  local  board  to  be  exercised, 
mayhap  in  a  capricious  or  arbitrary  manner,  and  be  summarily  executed 
or  enforced,  but  should  be  subject  to  the  control  and  review  of  other 
and  superior  authorities  or  magistrates,  and  the  landowner  should 
have  ample  opportunity  to  be  heard. 

The  conservation  of  public  interests  and  the  people's  health  and  safe- 
ty must  be  looked  to,  but,  at  the  same  time  private  rights  of  property 
must  be  guarded  and  protected  against  unwarrantable  invasion,  and 
the  undue  exercise  of  authority  must  be  restrained  within  reasonable 
and  proper  bounds.  These  purposes  were  all  intended  to  be  accom- 
plished by  the  public  health  act,  and  proper  safeguards  were  provided 
for  the  landowner's  protection.  The  sanitary  commissioner  has  power 
to  do  no  more  than  to  require  the  abatement  of  the  nuisance  com- 
plained of;  and,  it  may  be,  he  may  prescribe  the  particular  mode 
of  abating  it,  if  that  be  the  most  effectual  way  of  doing  it.  But 
he  possesses  no  absolute  power  in  that  regard.  Nor  does  it  follow 
that  he  may  direct  important  alterations  and  permanent  improvements 
upon  the  premises,  at  a  large  expense  to  the  owner,  not  demanded  by 
the  actual  necessities  of  the  case.  There  are  no  words  in  the  charter 
to  justify  the  contention  that  the  owner  of  the  premises  may  be  re- 
quired, in  addition  to  abating  the  cause  endangering  the  public  health 
and  safety,  to  make  expensive  improvements  upon  his  property  to  suit 
the  fancy  of  the  official.     His  dutv  was,  not  to  order  the  construction 


Cll.  1)        EXECUTIVE,  QUASI   JUDICIAL.  AND   QUASI    LEGISLATIVE.  29 

of  an  entirely  new  privy,  with  all  its  connections  and  accessories,  but 
simply  to  see  to  the  amendment  of  the  one  existing.  No  attempt  was 
made  on  the  trial  to  show  that  the  existing  privy  could  not  have  been 
put  in  such  condition  for  use  as  not  to  be  a  menace  to  health.  The 
fact  that  a  privy  may  not  conform  in  all  its  appointments  and  accesso- 
ries to  the  most  approved  modes  of  scientific,  sanitary  plumbing  does 
not  of  itself  condemn  it  as  a  nuisance. 

The  charter  speaks  only  of  abatement  of  nuisances,  and  the  ex- 
pense authorized  relates  to  the  work  and  labor  necessary  for  the  ac- 
complishment of  the  purpose  of  removing  or  suppressing  them,  and 
not  to  the  construction  of  something  entirely  new  in  lieu  of  the  thing 
whose  condition  creates  the  nuisance.  The  nuisance  complained  of 
was  the  filthy  condition  of  the  privy  vaults  at  the  time  of  the  deter- 
mination that  they  were  detrimental  to  health,  but  the  large  expense 
incurred  had  no  relevancy  to  the  abatement  of  that  nuisance.  It  was 
not  an  incident  to  the  removal  of  the  cause  of  the  nuisance,  but,  on  the 
contrary,  was  for  entirely  new  and  independent  work  for  the  altera- 
tion and  improvement  of  the  plaintifif's  premises.  For  this  we  find  no 
authority   in   the   charter.     *     '•'     '''     ^^ 

15  English  riiltlic  Health  Act,  1875,  §  36:  "If  a  house  within  the  district  of 
a  local  authority  appears  to  such  authority  by  the  report  of  their  surveyor 
or  inspector  of  nuisances  to  be  without  a  sufficient  water-closet,  earth-closet, 
or  privy,  and  an  ashpit  furnished  with  proper  doors  and  coverings,  the  local 
authority  shall,  by  written  notice,  require  the  owner  or  occupier  of  the  house, 
within  a  reasonable  time  therein  specified,  to  provide  a  sufficient  water-closet, 
earth-closet,  or  privy,  and  an  ashpit  furnished  as  aforesaid,  or  either  of  them, 
as  the  case  may  require.  If  such  notice  is  not  complied  with,  the  local  au- 
thority may,  at  the  expiration  of  the  time  specified  in  the  notice,  do  the  work 
thereby  required  to  be  done,  and  may  recover  in  a  summary  manner  from  the 
owner  the  expenses  incurred  by  them  in  so  doing,  or  may  by  order  declare 
the  same  to  be  private  improvement  expenses." 

"I  take  it  to  be  fully  established  by  the  evidence  before  us  that  the  order 
issued  by  the  defendant  proceeds  upon  the  footing  that  there  shall  be  no 
privies  in  their  district,  that  all  the  privies  there  shall  be  turned  into  water- 
closets,  and  that  this  resolution  has  been  come  to  before  this  order  was  issued, 
and  without  reference  to  the  present  case.  *  *  *  Now,  whatever  may  be 
the  powers  given  by  this  act  to  the  local  authorities  to  order  water-closets 
to  be  provided  instead  of  privies  in  particular  cases  in  which  that  alteration 
may  be  required,  *  *  *  i  think  that,  whatever  may  be  the  powers  given, 
upon  the  true  construction  of  the  act,  and  viewing  it  in  the  light  most  favor- 
alalo  to  these  defendants,  they  were  bound  to  exercise  their  discretion  in  each 
particular  case,  and  that  it  was  not  competent  to  them  to  lay  down  any  such 
general  rule  as  that  upon  which  the  defendants  acted,  and  that  in  acting 
upon  that  rule  they  have  exceeded  the  powers  given  to  them  by  the  act,  and 
that  therefore  this  order  was,  in  that  respect,  illegal  and  void,  and  that  the 
defendants  had  not  tlie  power  to  enter  upon  the  premises  for  the  purpose  of 
giving  effect  to  this  part  of  the  order."  Turner,  L.  J.,  in  Tinkler  v.  Board 
of  Works  for  Wandsworth  District,  27  Law  Journal  CS.  S.)  Chanoerv,  .342 
(1857-58).  See,  also,  U.  S.  Fidelity  &  Guaranty  Co.  v.  Linehan,  73  N.  H.  41, 
58  Atl.  956,  post,  p.  607. 

As  to  the  difference  between  quasi  judicial  and  quasi  legislative  ordei'S, 
especially  as  regards  the  construction  of  statutes  giving  a  right  of  appeal, 
see  Nelson  v.  State  Board  of  Health,  186  Mass.  330,  71  N.  E.  693  (1904). 


30  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

MORFORD  et  al.  v.  BOARD  OF  HEALTH  OF  AS  BURY  PARK. 
(Supreme  Court  of  New  Jersey.     1898.     Gl  N.  J.  Law,  380,  39  Atl.  700.) 

Certiorari  by  tlie  State,  on  the  prosecution  of  Harry  W.  Morford 
and  others,  against  the  Board  of  Health  of  Asbury  Park,  to  review 
an  ordinance  of  defendant.    Judgment  below  set  aside. 

Argued  November  term,  1897,  before  A^\n  Svckf.i,,  Dixon,  and 
Collins,  JJ. 

Van  SyckEl,  J.^^  The  controversy  in  this  case  relates  to  the  validity 
of  the  following  ordinance,  certified  into  this  court : 

"Be  it  ordained  by  the  board  of  health  of  the  borough  of  Asbury 
Park. 

"Sec.  43.  Every  stable  or  building  which  may  be  hereafter  con- 
structed or  reconstructed  in  the  borough  of  Asbury  Park,  in  which  any 
horse,  mule' or  cow  is  kept  or  stabled,  shall  be  so  constructed  and  drain- 
ed that  no  fluids,  excrement  or  refuse  liquids  shall  flow  upon  or  into 
the  ground.  All  of  the  surface  of  the  ground,  beneath  every  stall, 
in  every  such  building,  and  for  a  distance  of  at  least  four  feet  in  the 
rear  of  every  such  stall,  shall  be  covered  and  protected  from  pollu- 
tion by  a  water-tight  floor,  or  covering,  which  shall  be  constructed 
as  follows :  Where  the  said  water-tight  covering  rests  directly  upon 
the  ground  surface,  the  said  covering  shall  consist  of  concrete  made 
with  finely  broken  stone,  one  part ;  sharp  sand,  one  part ;  hydraulic 
cement,  one  part,  or  coarse  gravel,  two  parts ;  hydraulic  cement, 
one  part;  to  be  laid  at  least  three  inches  in  thickness.  Upon  this 
concrete  foundation  a  layer  at  least  two  inches  in  thickness  of  best 
asphalt,  or  a  layer  at  least  two  inches  in  thickness  of  coal-tar  concrete, 
or  a  layer  at  least  two  inches  in  thickness  of  cement  concrete  made 
with  sharp  sand,  one  part,  best  Imperial  Portland  cement,  one  part, 
shall  be  laid.  When  the  water-tight  covering  is  not  in  contact  with 
the  surface  of  the  ground,  it  shall  rest  upon  joist  or  floor  beams  three 
inches  by  ten  inches,  laid  twelve  inches  from  centers,  and  it  shall  con- 
sist of  spruce  or  yellow  pine  planking,  two  inches  thick  and  six 
inches  wide,  with  beveled  edges,  and  it  shall  be  closely  laid  so  that  the 
joints  shall  be  V-shaped,  and  be  open  at  the  top  one-quarter  of  an 
inch.  Said  joints  shall  be  calked  with  oakum  and  be  made  water- 
tight. Every  such  water-tight  covering  shall  be  laid  upon  a  grade  not 
less  than  one-eighth  of  an  inch  to  each  foot,  and  shall  be  so  drain- 
ed that  all  fluids  which  may  fall  upon  it  will  be  conveyed  to  a  street 
sewer  or  otherwise  disposed  of  subject  to  the  terms  of  a  permit  from 
this  board.  Portable  wooden  racks  shall  be  placed  upon  all  such 
asphalt,  coal-tar,  concrete  or  cement  concrete  floors  within  said  stalls. 
Said  wooden  racks  or  floor  coverings  shall  be  constructed  of  spruce 
strips,  two  inches  in  thickness,  made  in  two  sections  and  they  shall  be 
so  placed  that  they  may  be  readily  removed  for  cleaning.     *     *     * 

16  Only  a  portion  of  the  opinion  is  printed. 


I 


Ch.  1)        EXECUTIVE,  QUASI   JUDICIAL,  AND   QUASI   LEGISLATIVE,  31 


Any  person  or  persons  or  corporation  who  shall  offend  against  any  of 
the  provisions  of  this  section  shall  forfeit  and  pay  a  penalty  of  one 
hundred  dollars." 

The  board  of  health  derives  its  power  from  the  following  legis- 
lative acts:  By  the  act  of  February  22,  1888  (2  Gen.  St.  p.  1(342), 
boards  of  health  are  given  power  to  adopt  ordinances ;  to  compel,  pre- 
scribe, regulate,  and  control  the  plumbing,  ventilation,  and  drainage 
I  of  all  buildings,  public  and  private,  and  the  connection  thereof  with 
I  outside  sewers,  cesspools,  or  other  receptacles,  etc.;  and  to  secure  the 
I  sanitary  condition  of  all  buildings,  public  and  private.  Again,  by  the 
I  act  of  j\Iarch  29,  1892  (2  Gen.  St.  p.  1644),  power  is  given  to  regulate 
I  the  keeping  of  all  kinds  of  animals,  and  to  regulate  and  control  the 
{accumulating  of  offal,  and  to  secure  the  sanitary  condition  of  all 
'  public  buildings,  and  to  protect  the  public  water  supply,  and  to  prohibit 
land  remove  any  offensive  matter  or  abate  any  nuisance  in  any  place, 
I  public  or  private.  The  act  of  1888  also  requires  plans  for  the  plumbing, 
'ventilation,  and  drainage  of  buildings  to  be  submitted  to  the  board  of 
I  health  for  inspection  and  approval.  While  the  courts  fully  recognize 
I  the  importance  of  the  powers  granted  to  boards  of  health,  and  give 
I  them  a  liberal  construction,  such  boards  will  be  confined  in  their  in- 
jterference  with  the  lawful  business  of  any  individual  to  such  inter- 
I  ruptions  and  regulations  as  may  be  reasonably  necessary  to  enable 
i  them  to  abate  any  nuisance  he  may  create  in  conducting  it.  Weil 
V.  Ricord,  24  N.  J.  Eq.  169. 

The  prosecutors  insist  that  the  statutes  under  which  boards  of  health 
are  constituted  do  not  empower  them  to  prescribe  the  manner  in  which 
I  stable  floors  shall  be  laid  with  the  strictness  and  particularity  con- 
jtained  in  the  certified  ordinance,  and  that  it  is  therefore  unreasonable 
land  void.  In  Gregory  v.  Mayor,  etc.,  40  N.  Y.  273,  the  board  of 
[health  had  power  to  carry  into  full  execution  whatever  the  health  and 
I  safety  of  the  citizens  required.  The  New  York  court  held  that,  in  the 
j  exercise  of  such  authority,  the  board  could  not  order  generally  that  all 
I  sinks  and  privies  be  removed  as  nuisances,  but  must  find  the  existence 
I  of  the  nuisance  as  a  fact,  and  exercise  a  specific  judgment  as  to  the 
[  necessity  for  removal.  The  Massachusetts  statute  in  general  terms 
^  authorizes  the  boards  of  health  to  order  the  owner  or  occupant  of 
[premises  at  his  own  expense  to  remove  a  nuisance.  In  Reservoir  Co. 
Iv.  Mackenzie,  132  Mass.  71,  the  supreme  court  denied  the  power 
of  the  board  to  prescribe  the  exclusive  manner  in  which  it  should 
[be  removed,  namely,  by  filling  with  gravel,  earth,  or  some  proper 
material,  to  the  satisfaction  of  the  board,  flat  lands  which  caused  the 
I  alleged  nuisance.  The  court  declared  that  the  owner  had  the  right  to 
j  adopt  the  alternative  of  excavating  or  dredging  the  flats,  or  keeping 
;  them  covered  with  water.  This  ruling  w^as  in  conformity  to  the  view 
I  which  prevailed  in  Salem  v.  Railroad  Co.,  98  Mass.  431,  96  Am.  Dec. 
}  650,  where  the  owner  was  not  restricted  to  the  mode  prescribed  by  the 
I  board  of  health  for  removing  a  nuisance.     In  Health  Department  v. 


32  ADMINISTRATIVE   POWER   AXD   ACTION.  (Part    1 

I.alor,  38  Hun,  542,  the  statute  provided  that  the  drainage  and 
liUimbing-  of  all  buildings  should  be  executed  in  accordance  with  plans 
previously  approved  in  writing-  by  the  board  of  health,  and  in  conse- 
quence of  such  specific  authority  the  owner  of  property  was  prohibited 
from  departing  from  the  plan  so  approved. 

It  is  well  settled  that,  in  order  to  uphold  the  action  of  boards  ex- 
ercising a  special  statutory  jurisdiction,  authority  for  it  must  be  found 
in  the  positive  law.  In  our  statutes,  before  referred  to,  the  power  is 
given  in  general  terms  to  the  board  of  health  to  pass  ordinances  to  reg- 
ulate the  drainage  of  stables.  There  is  no  language  which  authorizes 
the  board  to  prescribe  a  mode  to  which  stable  owners  must  rigidly  con- 
form. On  the  contrary,  the  act  of  1888  expressly  recognizes  the  right 
of  the  stable  owner  to  submit  plans  for  drainage  to  the  board  for  ap- 
proval, and  this  negatives  the  idea  that  an  ordinance  may  lawfully  be 
adopted  which  will  deprive  the  owner  of  that  privilege.  The  conclusion 
which  results  from  this  view  of  the  statute  is,  not  that  the  ordinance  is 
void,  but  that  the  owner  is  not  restricted  to  the  manner  of  laying  the, 
floor  which  is  prescribed  by  the  ordinance.  The  ordinance  stands  as 
a  protection  to  those  who  conform  to  it.  If  the  owner  secures  the 
sanitary  condition  of  his  building  by  adopting  some  other  plan,  he  is 
not  amenable  to  prosecution.  In  departing  from  the  directions  contain-| 
ed  in  the  ordinance,  he  takes  the  risk  of  creating  a  nuisance.  If  the 
plan  he  resorts  to  is  a  failure,  he  may  be  held  for  the  penalty,  not  on, 
the  ground  that  he  has  not  conformed  to  the  plan  specifically  set, 
out  in  the  ordinance,  but  on  allegation  and  proof  that  his  stable  is  a 
nuisance. 

Whether,  in  this  case,  the  complaint  is  in  such  form,  and  the  ordi- 
nance so  framed,  that  upon  proper  proof  the  penalty  could  lawfully  be 
imposed  upon  the  owners  of  the  stable,  it  is  not  necessary  to  decide.' 
The  justice  before  whom  the  proceedings  below  were  had  convicted 
the  owners  of  the  ofifense  of  violating  the  ordinance,  and  imposed  the 
penalty  for  that  alleged  offense,  and  not  for  maintaining  a  nuisance. 
They  may  have  violated  the  ordinance  without  committing  the  ofifense 
of  creating  a  nuisance.  No  conviction  could  lawfully  have  been  had 
except  for  maintaining  a  nuisance. 

The  judgment  below  must,  therefore,  be  set  aside. ^^ 

IT  (^^ompai-e  Durgiu  v.  Miuot,  203  Mass.  2G,  S9  X.  E.  144,  24  L.  R.  A.  (N.  S.) 
241  (1909). 


Ch,  1}       EXECUTIVE,  QUASI  JUDICIAL,  AND   QUASI  LEGISLATIVE.  33 


SECTION  5.— SAME— CONDITIONS  ANNEXED  TO  GRANT 
OF  LICENSE 


REG.  V.  BOWMAN  et  al.,  Justices. 
(High  Court  of  Justice,  Queen's  Bench  Division.    [1898]  1  Q.  B.  GG3.) 

Rules  to  justices  for  the  borough  of  South  Shields  for  a  certiorari 
to  bring  up  an  order  granting  a  license  to  one  John  Duncan  to  sell 
intoxicating  liquors  to  be  quashed,  and  for  a  mandamus  to  hold  an 
adjournment  of  the  general  annual  licensing  meeting  and  hear  and 
determine  according  to  law  an  application  by  the  said  Duncan  for  a 
license. 

At  the  general  annual  licensing  meeting  for  the  borough  of  South 
Shields  held  on  August  25,  1897,  John  Duncan,  who  was  at  that  time 
the  holder  of  three  licenses  to  sell  intoxicating  liquors  within  the  bor- 
ough, applied  for  a  provisional  full  license  to  sell  intoxicating  liquors 
on  certain  premises  then  about  to  be  erected.  The  hearing  of  the 
application  was  adjourned  to  September  29,  when  Henry  Yooll  and 
John  George  Patton,  being  inhabitants  and  ratepayers  of  the  said  bor- 
ough, attended  the  licensing  sessions  and  opposed  the  application.  At 
a  further  adjourned  session  held  on  November  3  the-  chairman  of 
the  licensing  committee  stated  that  the  justices  had  decided  to  grant 
the  license  on  condition  of  the  three  existing  Hcenses  being  surrendered 
and  of  a  sum  of  il,000.  being  paid  by  Duncan  to  the  justices.  The 
conditions  having  been  performed,  the  license  was  granted,  and  the 
grant  was  subsequently  confirmed.  Messrs.  Yooll  and  Patton  there- 
upon obtained  the  above-mentioned  rules  for  a  certiorari  and  a  man- 
damus on  the  ground  that  the  justices  in  annexing  the  said  conditions 
to  the  grant  of  the  license  were  acting  illegally  and  outside  their  juris- 
diction. 

It  was  admitted  by  them  that  it  was  the  intention  of  the  justices  to 
apply  the  £1,000.  so  paid  by  Duncan  in  reduction  of  the  rates  of  the 
borough,  or  for  some  other  similar  public  purpose. 

Wills,  J.^^  This  is  a  case  of  considerable  importance,  but  it  is 
one  which  presents  no  difficulty  as  soon  as  the  facts  (which  are  not 
in  dispute)  are  ascertained.  It  is  clear  that  any  member  of  the  public 
has  a  right  to  be  heard  in  opposition  to  an  application  for  a  license, 
and,  having  such  a  right,  he  is  entitled  to  be  heard  according  to  legal 
principles.  If  the  justices  allow  themselves  to  take  into  consideration 
matters  which  have  no  bearing  upon  the  merits  of  the  case  before  them, 
and  which  influence  their  minds  in  arriving  at  their  decision,  it  cannot 

18  Parts  of  the  opinions  are  omitted. 
Fr.Adm.Law. — 3 


34  ADMINISTRATIVE   TOWER   AND   ACTION.  (Part    1 

be  said  that  tlie  objector  has  been  heard  according  to  law.  In  the 
present  case  the  justices  stated  that  they  were  prepared  to  grant  the 
license  upon  the  terms  that  the  three  existing  licenses  then  held  by  the 
applicant  should  be  surrendered,  and  that  he  should  further  pay  to  them 
a  sum  of  £1,000.  for  some  public  purpose. 

As  to  whether  the  justices  were  entitled  to  attach  the  condition  of  the 
surrender  of  the  old  licenses  I  will  express  no  definite  opinion,  though 
as  at  present  advised  I  incline  to  the  view  that  they  might  lawfully 
have  done  so,  as  the  number  of  the  licensed  houses  which  the  needs 
of  the  neighborhood  demanded  was  one  of  the  matters  which  they  had 
to  consider.  But  the  condition  of  the  payment  of  il,000.  was  wholly 
unjustifiable.  If  authority  were  needed,  it  is  enough  to  refer  to  the 
case,  which  was  cited,  of  Rex  v.  Athay,  2  Burr.  653.  The  justices 
had  no  more  right  to  require  the  payment  of  money  for  public  pur- 
poses than  to  require  that  it  should  be  paid  into  their  own  pockets.  If 
the  attachment  of  such  a  condition  were  allowed  to  pass  without 
objection,  there  would  soon  grow  up  a  system  of  putting  licenses  up 
to  auction — a  system  which  would  be  eminently  mischievous  and 
would  open  the  door  to  the  gravest  abuses.  No  doubt  the  justices 
were  acting  in  perfect  bona  fides  and  in  the  interests  of  the  public. 
But  their  conduct  w^as  none  the  less  illegal.  There  has  been  no  real 
hearing,  and  the  mandamus  must  therefore  go.     *     *     * 

Darung,  J.  I  entirely  agree.  The  justices  have  here  done  a  thing 
which  in  a  few  years'  time  they  may  perhaps  be  allowed  to  do.^*  They 
have  sought  to  make  vendors  of  intoxicating  liquor,  and  through  them 
the  persons  who  indulge  in  it,  bear  more  than  their  ordinary  share  of 
the  public  burdens.  It  has  often  been  suggested  that  a  law  to  that 
effect  would  be  a  very  proper  one  to  enact.  But  it  is  not  law  yet.  If 
ever  it  is  made  the  law  it  must  be  by  the  authority  of  Parliament,  and 
when  Parliament  does  so  enact  it  will  no  doubt  take  care  to  specify 
the  particular  public  objects  to  which  the  money  is  to  be  applied.  The 
justices  have  here  approached  the  consideration  of  the  case  with  pre- 
conceived theories  as  to  the  proper  distribution  of  the  unearned  in- 
crement of  value  arising  from  the  grant  of  a  license  to  particular 
premises,  and  have  allowed  those  theories  to  influence  their  decision. 
Under  those  circumstances  it  is  enough  to  refer  to  Reg.  v.  Adamson, 
1  Q.  B.  201,  to  show  that  a  mandamus  must  be  allowed.     *     *     * 

19  The  power  was  given  by  Licensing  Act  1904,  §  4. 


Ch.  1)        EXECUTIVE,  QUASI  JUDICIAL,  AND   QUASI   LEGISLATIVE.  35 

VAN  NORTWICK  v.  BENNETT. 

(Supreme  Court  of  New  Jersey,  1898.    G2  N.  J.  Law,  151,  40  Atl.  G89.) 

On  certiorari  to  review  the  granting  of  a  license  to  sell  ale,  etc.,  by 
the  Monmouth  pleas. 

Van  SyckEl,  J.  The  defendant,  Bennett,  applied  for  a  license 
to  sell  ale,  strong  beer,  etc.,  under  the  act  approved  April  -i,  1872 
(Gen.  St.  p.  1797.  pi.  60). 

This  application,  as  recommended  by  the  ten  freeholders  [as  re- 
quired by  the  said  act,  and  in  due  form],  v^as  for  a  license  to  sell  in 
the  place  occupied  by  the  petitioner,  being  the  northwesterly  side  of 
the  building  erected  on  the  southeasterly  side  of  Shark  river,  between 
the  county  bridge  and  the  railroad  bridge. 

When  the  application  was  presented  to  the  Monmouth  pleas  there 
was  a  remonstrance  against  granting  it.  Thereupon  the  application 
was  amended  by  restrictive  words,  defining  the  portion  of  the  premises 
in  which  the  license  was  to  be  used,  and  the  following  clause  was 
inserted  in  the  affidavit  thereto :  "This  application  is  made  with  the 
express  understanding  that  no  open  bar  is  to  be  maintained,  and  that 
the  purpose  of  this  license  is  to  serve  guests  at  table  with  meals." 

The  affidavit  was  not  again  taken  after  this  alteration,  nor  did  the 
freeholders  who  recommended  the  application  sign  the  recommenda- 
tion after  the  petition  was  altered. 

The  court  granted  a  license  to  Bennett  "with  the  express  condition 
that  no  open  bar  was  to  be  maintained,  and  that  the  purpose  of  the  li- 
cense was  to  serve  guests  at  table  with  meals." 

The  act  of  1873  prescribes  the  form  of  the  license  which  the  court 
may  grant,  which  is  "to  sell  malt  liquors  in  the  place  which  the  appli- 
cant keeps."  A  license  so  granted  authorizes  the  licensee  to  keep  an 
open  bar.  From  the  fact  that  the  court  annexed  to  the  license  granted 
a  condition  that  he  should  not  keep  an  open  bar,  and  should  sell  only 
with  meals  served,  we  must  infer  that  in  the  exercise  of  its  dis- 
cretion the  court  decided  that  a  license  such  as  the  statute  authorizes 
should  not  be  granted.  The  license  granted  is  not  authorized  by  the 
act  of  1873,  or  by  any  other  statute,  and  was  not  recommended  by  ten 
freeholders.  The  common  pleas,  therefore,  had  no  jurisdiction  or 
authority  to  grant  such  a  license.  A  constituent  essential  to  the  juris- 
diction of  the  court  was  absent,  and  that  makes  its  action  subject  to  re- 
view in  this  court,  under  the  case  of  Dufiford  v,  Nolan,  46  N.  J.  Law,  87. 

The  suggestion  that  the  restriction  imposed  will  be  in  the  interest 
of  good  order  cannot  be  considered.  Licenses  can  be  granted  only  in 
virtue  of  the  statute.  The  Legislature  alone  prescribes  the  conditions 
(and  terms,  and  the  common  pleas  is  without  power  to  depart  from 
these  provisions,  and  to  say  that,  although  the  license  provided  by  law 
ought  not  to  be  granted,  it  will  issue  some  other  license  not  authorized 


36  ADMINISTRATIVE  POWER   AND  ACTION.  (Part    1 

by  the  act.    The  action  of  the  court  has  no  basis  in  legislation,  and  is 
therefore  invalid. 

The  license  certified  is  vacated  and  set  aside.^** 


SECTION  6.— SAME— LICENSING  POWER  AND  POWER  TO 
REVOKE  LICENSES 


CITY  OF  LOWELL  v.  ARCHAMBAULT. 
(Supreme  Judicial  Court  of  Massachusetts,  1905.    189  Mass.  70,  7o  N.  E.  65.) 

Appeal  from  Superior  Court,  Middlesex  County. 

Bill  in  equity  by  the  City  of  Lowell  against  one  Archambault.    Fror 
a  decree  for  plaintiff,  defendant  appeals.     Reversed. 

BraIvEy,  J.  This  is  a  bill  in  equity,  brought  under  Rev.  Laws,  c| 
102,  §  71,  to  enjoin  the  defendant  from  occupying  and  using  a  stable,' 
in  violation  of  the  provisions  of  section  69  of  the  same  chapter.  In  the 
superior  court  the  case  was  submitted  on  agreed  facts,  and  after  a 
decree  had  been  entered  in  favor  of  the  plaintiff,  it  comes  before  us  on 
the  defendant's  appeal. 

It  appears  that  the  defendant,  who  is  engaged  in  the  business  of 
an  undertaker,  desiring  to  erect  on  his  land  a  stable  to  be  used  in 

20  Compare  Chester  v.  Wabash,  etc.,  Co.,  182  111.  382,  55  N.  E.  524  (1899), 
consent  with  a  time  limit  held  valid.  As  to  the  validity  of  consents  given 
for  a  consideration,  see  Maguire  v.  Smock,  42  Ind.  1,  1.3  Am.  Rep.  .35.3  (1873); 
Howard  v.  First  Indep.  Church,  18  Md.  451  (18G2) ;  Doane  v.  Chicago  City 
R.  Co.,  IGO  111.  22,  45  N.  E.  507,  35  L.  R.  A.  588  (1895) ;  Hamilton  Traction 
Co.  V.  Parish,  67  Ohio  St.  181,  65  N.  E.  1011,  60  L.  R.  A.  531   (1902). 

See  Francis  v.  Francis,  203  U.  S.  23S,  242,  27  Sup.  Ct.  129,  132,  51  L.  Ed. 
165  (1906):  "It  follows  that  the  words  in  the  patent  of  1827,  'but  never  to  be 
conveyed  by  them  or  their  heirs,  without  the  consent  and  permission  of  the 
President  of  the  United  States,'  were  ineffectual  as  a  restriction  upon  the 
power  of  alienation.  The  President  had  no  authority, 'in  virtue  of  his  office, 
to  impose  any  such  restriction ;  certainly  not  without  the  authority  of  an 
act  of  Congress,  and  no  such  act  was  ever  passed." 

See  Sidney  and  Beatrice  Webb,  English  Local  Government,  I,  "The  Parish 
and  the  County,"  p.  541:  "The  whole  sphere  of  licensing  afforded  a  wide 
opportunity  for  virtual  legislation.  We  have  sufficiently  described  elsewhere 
the  extent  to  which  the  justices,  at  first  in  pairs  and  afterward  in  Brewster 
sessions,  exercised  their  plain  legal  right  to  impose  conditions  on  alehouse 
keepers  seeking  licenses,  and  to  bind  them  over,  by  'articles'  attached  to  the 
statutory  recognizances,  to  close  at  certain  hours  or  on  certain  days,  to  follow 
this  or  that  line  of  conduct,  and  to  abstain  from  i>articular  lawful  acts  of 
which  these  particular  justices  chose  to  disapprove." 

As  to  the  power  of  municipal  corporations  to  annex  conditions  to  their  con- 
sent to  the  laying  of  railroad  tracks  or  to  the  placing  of  other  public  utility 
appurtenances  in  the  public  streets,  see  Byrne  v.  Chicago  General  R.  Co.,  109 
111.  75,  83-85,  48  N.  E.  703  (1897) ;  Allegheny  City  v.  Millville,  etc.,  Ry.  Co., 
159  Pa.  411,  28  Atl.  202  (1893),  in  favor  of  the  power ;  Matter  of  King  County 
Elevated  R.  Co.,  105  N.  Y.  97,  114,  13  N.  E.  18  (1887)  quaere;  State  ex  rel, 
V.  City  of  Sheboygan,  111  Wis.  23,  86  N.  W.  657  (1901),  and  Wisconsin  Tele- 
phone Co.  V.  Milwaukee,  126  Wis.  1,  104  N.  W.  1009,  1  L.  R.  A.  (N.  S.)  581, 
110  Am.  St.  Rep.  886  (1905),  against  the  power. 


Ch.  1)        EXECUTIVE,  QUASI  JUDICIAL,  AND   QUASI  LEGISLATIVE.  37 

connection  therewith,  applied  to  the  board  of  health  for  a  license  to 
permit  him  to  occupy  and  use  the  building  when  completed  for  the 
stabling  of  eight  horses.  This  petition  was  granted,  and  a  license 
duly  issued  to  him,  permitting  the  exercise  of  this  privilege.  Upon  re- 
ceiving it,  he  at  once  had  plans  prepared,  and  began  the  erection  of  a 
stable  on  a  site  from  which  he  had  at  a  pecuniary  loss  removed  another 
I  building.  After  the  work  had  been  begun,  but  before  its  completion. 
I  the  board  of  health,  acting  on  the  petition  of  residents  in  the  immedi- 
I  ate  vicinity,  rescinded  their  former  vote  and  canceled  the  license.  Since 
I  the  completion  of  the  building  the  defendant  has  used  it  for  the  keep- 
ing of  two  horses,  claiming  this  right  under  the  license,  which  he 
contends  never  has  been  legally  annulled.  If  the  revocation  was  in- 
valid, such  use  was  not  in  violation  of  the  statutory  provision  on 
which  the  plaintiff  relies,  and  the  bill  cannot  be  maintained.  The  li- 
cense granted  under  the  police  power  of  the  commonwealth,  as  ad- 
ministered through  the  agency  of  the  board  of  health,  did  not  con- 
stitute a  contract  between  him  and  the  city,  or  confer  upon  him  any 
vested  right  of  property.  Neither  did  its  abrogation,  if  lawful,  de- 
prive him  of  any  immunity  or  privilege  conferred  upon  him  by  our 
Constitution.  Calder  v.  Kurby,  5  Gray,  597;  Newton  v.  Joyce,  166 
Mass.  83,  44  N.  E.  116,  55  Am.  St.  Rep.  385 ;  Young  v.  Blaisdell,  138 
Mass.  344. 

The  Statutes  of  1895  (page  219,  c.  213),  now  Rev.  Laws,  c.  103, 
§§  69,  71,  under  the  authority  of  which  the  board  acted  and  the  li- 
cense was  issued,  contained  no  provisions  for  its  recall  when  once 
granted.  It  evidently  was  the  purpose  of  section  1  of  the  original  act 
I  that  the  license  itself  should  specify  the  extent  of  the  right  conferred. 
I  by  setting  out  the  conditions  under  which  the  building  could  be  built 
I  and  used ;  for  by  section  2  the  board  may  make  regulations  respect- 
ing the  occupation  and  use  of  stables  in  existence  at  the  date  of  its 
passage,  while  the  last  section  provided  a  penalty  for  the  violation 
of  the  act  itself,  or  of  .any  order  or  regulation  made  pursuant  to  its 
requirements.  Whether  a  stable  was  in  existence  and  its  use  was  to 
be  continued,  or  permission  was  to  be  given  to  erect  a  stable  and  then 
use  it,  the  right  in  each  instance  was  subject  to  such  reasonable  regu- 
lations as  might  be  made  by  the  board  of  health.  It  undoubtedly 
was  presumed  that  the  board  would  make  proper  inquiries  before 
judicially  determining  whether  a  license  should  or  should  not  be  re- 
fused, and,  if  granted,  to  prescribe  by  its  terms  how  far  the  privilege 
might  be  exercised.  In  any  instance,  if  the  granting  of  a  license 
would  be  detrimental  to  the  public  health,  or  contrary  to  regulations 
already  established,  then  it  would  not  be  issued. 

If  the  statute  had  given  to  the  boards  of  health  of  cities  a  general 
authority  similar  to  that  conferred  by  Pub.  St.  1882,  c.  80,  §   10,-^ 

21  This  section  provides  tliat  boards  of  lienltli  may  exercise  all  the  powers 
vested  in,  and  shall  perform  all  the  duties  prescribed  to,  city  councils  or 
mayors  and  aldermen  as  boards  of  health  under  the  statutes  and  ordinances 
in  force  in  their  respective  cities  on  May  17,  1S77. 


38  ADMIKISTRATIVIO   rOWIOR   AND   ACTION.  (Part    1 

it  might  be  that  they  lawfully  could  make  the  violation  of  their  regu- 
lations a  sufficient  ground  for  revoking  the  privilege,  and  could  issue 
it  upon  such  a  condition.  Young  v.  Blaisdell,  ubi  supra ;  Grand  Rap- 
ids V.  Braudy,  105  Mich.  G70,  677,  678,  6i  N.  W.  29,  32  L.  R.  A. 
116,  55  Am.  St.  Rep.  472.-2  j^^  i^^st  it  could  be  said  that  the  licensee 
then  would  take  it  subject  to  this  reservation,  and,  having  agreed  to 
its  terms,  no  injustice  would  be  done  by  a  subsequent  cancellation. 
Generally,  under  statutes  regulating  the  conduct  of  certain  kinds  of 
emplo3'ment  or  of  business  which  require  the  protection  of  a  license, 
before  they  can  be  lawfully  prosecuted,  the  penalty  of  forfeiture  is 
dealt  with  either  by  conferring  express  authority  to  revoke  for  viola- 
tions upon  the  licensing  board  or  some  other  tribunal,  or  else  a  general 
power  is  delegated,  under  which  such  a  clause  may  be  inserted  in  the 
license  itself.  Rev.  Laws,  c.  100,  §§  15,  47,  89;  chapter  103,  §§  9, 
28,  29,  33,  58,  72  ;   Grand  Rapids  v.  Braudy,  ubi  supra. 

Upon  application  for  permission  to  erect  a  stable,  which,  in  the 
absence  of  a  restricting  statute,  would  be  a  legitimate  improvement  in 
the  enjoyment  of  his  property,  the  applicant  is  entitled  to  know  the 
full  measure  of  immunity  that  can  be  granted  to  him  before  making 
the  expenditure  of  money  required  to  carry  out  his  purpose.  A  resort 
to  the  general  laws  relating  to  the  subject,  or  to  ordinances  or  regu- 
lations made  pursuant  to  them,  should  furnish  him  with  the  required 
information.  When  this  has  been  obtained,  he  has  a  right  to  infer 
that  he  can  safely  act,  with  the  assurance  that,  so  long  as  he  complies 
with  the  requirements  under  which  it  is  proposed  to  grant  the  priv- 
ilege, he  has  a  constitutional  claim  to  protection,  until  the  Legislature 
further  restricts  or  entirely  abolishes  the  right  bestowed.  Common- 
wealth v.  Brennan,  103  Mass.  70 ;  Commonwealth  v.  Kinsley,  133 
Mass.  578,  579;  Hirn  v.  State,  1  Ohio  St.  20,  21;  Schwuchow  v. 
Chicago,  68  111.  444 ;  Lantz  v.  Hightstown,  46  N.  J.  Law,  102,  107 ; 
Grand  Rapids  v.  Braudy,  ubi  supra. 

Independently  of  this  statute,  while  the  board  of  health,  under  Pub. 
St.  1882,  c.  80,  §§  8,  12,  after  a  hearing  and  on  proper  evidence,  might 
have  adjudged  the  defendant's  building,  when  erected  and  occupied 
as  a  stable,  detrimental  to  the  public  health,  and  therefore  a  nuisance, 
it  had  no  jurisdiction  to  issue  a  license  to  him  permitting  and  regu- 

2  2  Schwuchow  V.  City  of  Chicago,  68  111.  444,  440  (1S73) :  "When  the  Leg- 
islature granted  power  to  suppress  groceries,  they  conferred  power  on  the 
city  which  they  might  exercise  even  to  that  extent.  The  Legislature,  then, 
having  conferred  such  power,  it  was  for  the  common  council  to  determine 
whether  they  would  wholly  suppress  the  sale  of  intoxicating  liquors,  or  grant 
the  privilege  on  such  terms  and  conditions  as  they  might  choose.  And  the 
power  was  ample,  under  this  grant,  to  impose  as  a  condition  that,  wlien  a 
license  is  gi-anted,  it  should  be  liable  to  revocation  on  the  violation  of  the 
ordinances  regulating  the  traffic,  or,  having  absolute  control  over  the  whole 
subject  of  granting  licenses,  they  may  impose  any  other  condition  calculated 
to  protect  the  community,  preserve  order,  and  to  suppress  vice."  See  Grand 
Rapids  v.  Braudy,  105  Mich.  1170,  04  N.  W.  29,  S2  L.  R.  A.  116,  55  Am.  St.  Rep. 
472  (181)5). 

See,  also.  Inhabitants  of  Quincy  v.  Kennard,  151  Mass.  563,  24  N.  E.  800, 
(1890). 


Ch.  1)        EXECUTIVE,  QUASI  JUDICIAL,  AND   QUASI   LEGISLATIVE.  39 

lating  such  use  except  as  authorized.  Commonwealth  v.  Stodder,  2 
Cush.  563,  48  Am.  Dec.  679 ;  Cambridge  v.  Munroe,  126  Mass.  496, 
502 ;  Commonwealth  v.  Plaisted,  148  Mass.  375,  383,  19  N.  E.  224, 
2  L.  R.  A.  142,  12  Am.  St.  Rep.  566.  It  is  the  Legislature  alone  that 
primarily  can  impose,  or  give  authority  to  impose,  conditions  and 
exact  forfeitures  (Lantz  v.  Hightstown,  ubi  supra;  Dillon,  Mun. 
Corp.  [3d  Ed.]  §  345,  note  4,  and  cases  cited);  and  the  authority 
of  the  board  as  a  governmental  agent  is  commensurate  with  the  pro- 
visions of  the  statute  clothing  it  with  this  power  (Abbott  v.  Frost,  185 
Mass.  398,  400,  70  N.  E.  478). 

A  licensee  should  not  be  subjected  to  the  uncertainties  that  con- 
stantly would  arise  if  unauthorized  limitations,  of  which  he  can  have 
no  knowledge,  are  subsequently  and  without  notice  to  be  read  into 
his  license  at  the  pleasure  of  the  licensing  board.  Besides,  all  rea- 
sonable police  regulations,  enacted  for  the  preservation  of  the  pub- 
lic health  or  morality,  where  a  penalty  is  provided  for  their  viola- 
tion, while  they  may  limit  or  prevent  the  use  or  enjoyment  of  prop- 
erty except  under  certain  restrictions,  and  are  constitutional,  create 
statutory  misdemeanors,  which  are  not  to  be  extended  by  implica- 
tion.    Commonwealth  v.  Beck,  187  Mass.  15,  72  N.  E.  357. 

The  Hcense  issued  to  the  defendant  contained  no  limit  of  time  for 
its  exercise,  nor  was  it  made  subject  to  an  existing  regulation  which 
so  provided.  It  stated  that  permission  was  given  to  keep  eight 
horses,  and  purported  to  and  did  set  out  in  full  the  statute  under 
which  it  was  granted,  but  contained  no  further  recitals.  Thus  neither 
by  its  terms  nor  by  the  statute  itself  was  it  made  revocable,  nor  does 
it  appear  that  any  regulations  had  been  adopted  or  promulgated  the 
violation  of  which  would  cause  a  forfeiture.  Originally  it  may  have 
been  improvidently  issued,  but  upon  being  informed  that  citizens  in 
the  vicinity  of  the  defendant's  premises  objected  to  the  erection  of 
the  building  for  its  proposed  use,  it  was  not  withim  the  power  of  the 
board  of  health,  even  after  a  hearing,  in  the  ablence  of  authority 
conferred  upon  them  by  legislative  sanction,  to  deprive  him  of  the 
privilege  they  had  unreservedly  granted.  Commonwealth  v.  Moylan, 
119  Mass.  109,  111;  Commonwealth  v.  Kinsley,  ubi  supra;  Mayor  v. 
Third  Avenue  Railroad,  33  N.  Y.  42 ;  Shuman  v.  Fort  Wayne,  127 
Ind.  109,  26  N.  E.  560,  11  L.  R.  A.  378 ;  Hirn  v.  State,  ubi  supra ; 
Grand  Rapids  v.  Brandy,  ubi  supra;   Lantz  v.  Hightstown,  ubi  supra. 

In  the  opinion  of  a  majority  of  the  court,  the  decree  must  be  re- 
versed, and  a  decree  entered  dismissing  the  bill,  with  costs.  So 
ordered.-^ 

23  See  Lautz  v.  Hightstown,  4G  N.  J.  Law,  102,  108  (1SS4):  "I  can  find  no 
instance  in  the  practice  of  boards  of  excise  or  other  licensing  bodies  in 
which  the  power  of  revocation  has  been  exerted  except  under  the  provisions 
of  a  statute."  See,  as  to  cancellation  of  license  illegally  obtained.  State  ex 
rel.  Schaefer  v.  Schroff,  123  Wis.  98,  100  N.  W.  1030,  post,  p.  490    (1904). 

See,  also,  Thompson  v.  Gibbs,  97  Tenn.  489,  37  S.  W.  277,  34  L.  R.  A.  54S 
(1896). 


40  ADMINISTRATIVE  TOWEU  AND  ACTION.  (Part    1 


METROPOLITAN  MILK  &  CREAM  CO.  v.  CITY  OF  NEW 
YORK  et  al. 

(Supreme  Court  of  New  York,  Appellate  Division,  First  Department,   190G. 
113  App.  Div.  377,  98  N.  Y.  Supp.  894.) 

Appeal  from  Special  Term,  New  York  County. 

Action  by  the  Metropolitan  Milk  &  Cream  Company  against  the 
City  of  New  York  and  another.  From  an  interlocutory  judgment  over- 
ruling a  demurrer  to  a  separate  defense  in  the  answer,  plaintiff  ap- 
peals.   Affirmed. 

Argued  before  O'Brien,  P.  J.,  and  PATTii;RSON,  Ingraiiam,  Laugh- 
LiN_,  and  ClarkE;,  JJ. 

Ingraham,  J.  The  action  was  brought  to  recover  $30,000  damages 
sustained  by  the  plaintiff  by  the  revocation  by  the  board  of  health  of 
the  city  of  New  York  of  certain  permits  issued  by  the  said  board  un- 
der winch  the  plaintiff'  was  authorized  to  sell  fresh  and  condensed 
milk  in  the  city  of  New  York.  The  plaintiff  was  a  domestic  corpora- 
tion and  engaged  in  selling  milk  and  cream  in  the  city  of  New  York. 
The  complaint  alleges:  That  the  department  of  health  is  a  depart- 
ment of  the  city  of  New  York,  organized  under  the  charter  of  the  city 
of  New  York  (chapter  466,  p.  1,  of  the  Laws  of  1901).  That  prior 
to  January  1,  1897,  the  board  of  health  of  the  former  city  of  New 
York  issued  to  the  plaintiff  seven  permits  or  licenses  to  sell  milk  in 
the  city  of  New  York,  dated  May  10,  1896.  That  thereafter  the  pres- 
ent board  of  health  organized  under  the  charter  of  1901  issued  to  the 
plaintiff'  three  additional  permits  to  sell  milk  in  the  city  of  New  York, 
dated  May  7,  1903,  and  June  10,  1903.  That  the  sale  of  milk  by  the 
plaintiff  in  the  city  of  New  York  without  a  permit  from  the  board  of 
health  was  after  the  14th  of  December,  1904,  a  misdemeanor.  That 
on  the  14th  day  of  December,  1904,  the  board  of  health  adopted  a 
resolution  wherein  and  whereby  they  directed  all  said  10  permits  or 
licenses  to  sell  milk  theretofore  issued  to  the  plaintiff  and  under  which 
the  plaintiff  was  carrying  on  its  said  business  to  be  forthwith  an- 
nulled and  revoked.  That  the  action  of  the  board  was  unjust,  arbi- 
trary, unlawful,  and  illegal,  and  without  just  cause,  and  that  the  said 
board  was  without  any  power,  authority,  or  warrant  in  law  to  revoke 
said  licenses.  The  form  of  the  permits  was  set  forth  in  the  com- 
plaint as  follows:  "Metropolitan  Milk  &  Cream  Company  is  hereby 
authorized  to  sell  milk,  fresh  and  condensed,  at  borough  of  Manhat- 
tan, under  the  laws,  rules,  and  regulations  of  the  board  of  health,  of 
the  department  of  health  of  the  city  of  New  York.  This  permit  is 
not  transferable  to  any  person  or  location  other  than  above,  and  must 
be  kept  posted  at  all  times  in  a  conspicuous  place  in  the  store,  and  is 
revocable  at  the  pleasure  of  the  board."  That  the  plaintiff''s  good  will, 
trade,  and  business  were  at  the  time  of  said  revocation  of  the  value 
of  $30,000.    That  in  consequence  of  said  revocation  of  the  said  Hcenses 


CIl.  1)        EXECUTIVE,  QUASI  JUDICIAL,  AND   QUASI   LEGISLATIVE.  41 

or  permits  the  plaintiff  was  prevented  from  continuing  or  carrying  on 
its  said  business,  and  said  business  thereby  and  thereupon  was  forth- 
with wholly  and  instantly  terminated  and  entirely  destroyed,  all  to  the 
plaintiff's  damage  in  the  sum  of  $30,000. 

The  defendants  served  separate  answers,  which  set  up  as  a  sep- 
arate defense  that  by  virtue  of  the  laws  of  the  state  of  New  York 
and  the  Sanitary  Code  of  the  city  of  New  York  the  defendant,  the 
department  of  health  of  the  city  of  New  York,  had  authority  and 
power  to  prevent  the  plaintiff  from  bringing  into  the  city  of  New- 
York,  or  keeping  or  selling  therein,  unwholesome  or  adulterated  milk, 
or  milk  which  had  been  watered,  or  milk  which  had  been  in  any  re- 
spect adulterated,  reduced,  or  changed  by  the  addition  of  water  or 
any  other  substance;  that  prior  to  the  14th  day  of  December,  1904, 
the  department  of  health  of  the  city  of  New  York,  upon  investigation 
and  inquiry,  discovered  that  the  plaintiff"  was  operating  a  creamery 
in  the  county  of  Orange,  in  the  state  of  New  York,  which  creamery 
and  appurtenances  were  kept  and  maintained  by  the  plaintiff  in  a  filthy, 
unwholesome,  and  unsanitary  condition,  and  from  the  said  creamery 
the  plaintiff  was  shipping  and  sending  to  the  city  of  New  York,  to  be 
sold  to  its  citizens,  milk  which  had  been  watered,  and  which  had  been 
adulterated  and  changed  by  dift'erent  substances;  and  that  the  plain- 
tiff had  been  using  in  such  milk  preservatives,  so  called,  and  coloring- 
matter,  and  was  also  shipping  and  sending  to  New  York,  to  be  used 
by  its  citizens  skim  milk  mixed  with  water,  labelled  "Butter  Milk"  ; 
whereupon  the  department  of  health  of  the  city  of  New  York,  after 
notice  to  the  plaintiff  and  after  a  hearing  upon  all  the  facts,  revoked 
the  license  or  licenses  of  the  plaintiff  to  sell  milk  in  the  city  of  New- 
York,  as  it  had  a  right  to  do,  and  as  it  was  its  duty  to  do,  and  not 
otherwise.  To  these  separate  defenses  demurrers  were  interposed  by 
the  plaintiff,  which  were  overruled. 

The  learned  counsel  for  the  defendants  do  not  attack  the  sufficiency 
of  the  complaint,  although  it  is  somewhat  difficult  to  see  how  any  act 
of  the  board  of  health,  acting  under  an  authority  conferred  by  the 
state  to  regulate  the  sale  of  impure  and  unwholesome  milk  in  the  city 
of  New  York,  can  impose  an  obligation  upon  the  municipality.  As 
this  point,  however,  is  not  taken  by  the  defendant,  it  will  not  be  con- 
sidered. 

The  first  seven  permits  were  issued  on  March  10,  1896,  under  the 
consolidation  act  (chapter  410,  p.  1,  Laws  1883,  as  amended).  By  sec- 
tion 34  (page  8)  of  that  act  the  board  of  health  was  created  a  de- 
partment of  the  said  city.  Section  575  (page  158)  provides  that  the 
Sanitary  Code  "adopted  and  declared  as  such  at  a  meeting  of  the  board 
of  health  of  the  health  department  of  the  city  of  New  York,  held  in 
the  city,  on  the  second  day  of  June,  1873,  as  amended  in  accordance 
with  law,  is  hereby  declared  to  be  binding  and  in  force  in  said  city." 
Section  576  (page  159)  provides  that  the  board  of  health  "shall  cause 
to  be  enforced  the  provisions  of  its  Sanitary  Code."    In  People  ex  rel. 


42  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

Lieberman  v.  Vandecarr,  175  N.  Y.  440,  67  N.  E.  913,  108  Am.  St. 
Rep.  781,  it  was  held  that  section  66  of  the  Sanitary  Code  which 
reads,  "No  milk  shall  be  received,  held,  kept,  offered  for  sale  or  deliv- 
ered in  the  city  of  New  York  without  a  permit  in  writing  from  the 
board  of  health  and  subject  to  the  conditions  thereof"  was  valid ;  that 
it  was  lawful  for  the  health  authorities  in  the  city  of  New  York  to 
require  the  relator  to  obtain  a  permit  under  section  66  of  the  Sani- 
tary Code  in  order  to  receive,  hold,  offer  for  sale  and  deliver  milk,  and 
failing  so  to  do  to  arrest  and  punish  him ;  that  the  vesting  of  powers 
more  or  less  arbitrary  in  various  officials  and  boards  is  necessary  if 
the  work  of  prevention  and  regulation  is  to  ward  off  fevers,  pestilence, 
and  the  many  other  ills  that  constantly  menace  great  centres  of  pop- 
ulation. The  board  of  health  thus  having  power  to  issue  permits  au- 
thorizing a  person  to  carry  on  the  business  of  dealing  in  milk  in  the 
city  of  New  York,  this  power  was  continued  by  the  subsequent  charters 
of  the  city  of  New  York. 

By  the  present  charter  (chapter  406,  p.  499,  of  the  L,aws  of  1901) 
the  board  of  health  is  constituted.  Section  1173  of  the  charter,  as 
amended  by  chapter  628,  p.  1491,  §  3,  of  the  Laws  of  1904,  provides 
that:  "The  Sanitary  Code  which  shall  be  in  force  in  the  city  of  New 
York  on  the  first  day  of  January,  nineteen  hundred  and  two,  and 
all  existing  provisions  of  law  fixing  penalties  for  violations  of  said 
Code  are  hereby  declared  to  be  binding  and  in  force  in  the  city  of 
New  York,  and  shall  continue  to  be  so  binding  and  in  force,  except  as 
the  same  may,  from  time  to  time,  be  revised,  altered,  amended  or  an- 
nulled, as  herein  provided."  By  section  1169  it  was  made  the  duty  of 
the  board  to  "enforce  all  laws  of  this  state  applicable  in  said  district, 
to  the  preservation  of  human  life,  or  to  the  care,  promotion  or  pro- 
tection of  health;  and  said  board  may  exercise  the  authority  given 
by  said  laws  to  enable  it  to  discharge  the  duty  hereby  imposed ;  and 
this  section  is  intended  to  include  all  laws  relative  to  cleanliness,  and 
to  use  or  sale  of  poisonous,  unwholesome,  deleterious,  or  adulterated 
drugs,  medicine  or  food.  *  *  *  The  board  of  health  shall  use  all 
reasonable  means  for  ascertaining  the  existence  and  cause  of  disease 
or  peril  to  life  or  health,  and  for  averting  the  same,  throughout  the 
city."  The  board,  being  charged  with  the  duty  of  protecting  the 
health  of  the  inhabitants  and  preventing  the  sale  of  impure  or  adul- 
terated food,  ascertained  that  the  plaintiff,  acting  under  the  permits 
which  it  had  issued,  was  engaged  in  selling  impure  and  adulterated 
milk.  The  board  gave  to  the  plaintiff"  notice  of  these  charges,  and 
after  a  hearing  it  revoked  the  permits ;  and  to  sustain  the  contention 
of  the  plaintiff  we  must  hold  that  such  permit  thereby  becomes  ir- 
revocable and  authorizes  the  person  to  whom  it  was  granted  to  con- 
tinue forever  to  sell  milk,  although  the  conditions  under  which  the 
permit  was  issued  were  continually  violated,  the  provisions  of  the  San- 
itary Code  in  relation  to  milk  sold  disregarded,  and  that  a  person  act- 
ing under  a  permit  from  the  board  of  health  is  selling  to  the  inhat 


Ch.  1)        EXECUTIVE,  QUASI   JUDICIAL,  AND   QUASI   LEGISLATIVE.  43 

itants  of  the  city  of  New  York  poisonous  and  impure  articles  for  food, 
endangering-  the  pubHc  health. 

The  sole  authority  that  the  health  board  would  have,  if  this  con- 
tention was  correct,  would  be  to  prosecute  the  person  selling  the  poison- 
ous article  in  the  shape  of  milk,  fine  him,  and  in  the  meantime  such 
person  could  go  on  poisoning  the  people  under  a  permit  or  license  from 
the  health  authorities,  a  proposition  which  is  so  unreasonable  that  a 
mere  statement  is  sufficient  to  refute  it.  There  is  nothing  in  either 
the  Penal  Code  or  the  charter  that  makes  such  a  permit  irrevocable. 
The  permit  itself  provides  that  it  is  revocable  at  the  pleasure  of  the 
board,  and  the  plaintiff  accepted  it  with  that  condition.  There  is  noth- 
ing unreasonable  in  this  condition;  and,  irrespective  of  the  general 
power  of  the  board  of  health  to  revoke  a  permit  which  is  being  abused 
and  under  which  the  person  accepting  it  and  using  it  is  persistently 
violating  the  law,  it  is  certainly  not  an  unreasonable  condition  to  in- 
sert into  such  a  permit  a  provision  that  it  is  revocable  by  the  board 
that  issues  it.  To  hold  that  a  permit  once  granted  is  irrevocable  would 
be  to  totally  defeat  the  object  of  the  statute  in  requiring  such  a  permit 
before  a  person  should  engage  in  the  business  of  supplying  to  the  in- 
habitants of  a  city  food,     *    -'=     "^^  -* 


SECTION    r.— ADMINISTRATIVE    POWERS    OF    REGULA- 
TION—SCOPE AND  VALIDITY 


POTTS  et  al.,  School  Directors,  v.  BREEN  et  al. 

(Supreme  Court  of  Illiuois.  1897.     107  111.  G7.  47  N.  E.  81,  39  L.  R.  A.  152, 
59  Am.  St.  Rep.  262.) 

Suits  by  Jennie  Breen  and  another,  by  Michael  Breen,  their  father 
and  next  friend,  against  Lawrence  W.  Potts  and  others,  School  Di- 
rectors of  District  No.  5,  Township  2  N.,  Range  13  W.,  in  Lawrence 
County,  111.  From  a  judgment  of  the  Appellate  Court  (60  111.  App. 
201)  affirming  a  judgment  for  plaintiffs,  defendants  appeal.    Affirmed. 

Carter,  J.  These  are  two  suits  between  the  same  parties,  one  a 
petition  for  a  writ  of  mandamus  to  compel  appellants  to  admit  appel- 
lees to  the  pubhc  school  of  their  district,  and  the  other  an  action  of 
trespass  to  recover  damages  for  the  exclusion  of  appellees  from  such 

24  A  portion  of  the  opinion  is  omitted. 

This  decision  was  referred  to  with  apiiroval  in  People  ex  rel.  Lodes  v.  De- 
partment of  Health.  189  N.  Y.  187,  82  N.  E.  187.  13  L.  R.  A.  (N.  S.)  804 
(1007).  It  was  affirmed  by  the  Court  of  Appeals,  without  opinion,  ISG  N.  Y. 
533,  78  N.  E.  1107. 


44  ADMINISTRATIVE  POWER  AND  ACTION.  (Part    1 

school.  The  cases  were  tried  together  upon  the  following  facts  agreed 
upon,  viz. : 

Jennie  Breen  and  Jim  Breen,  appellees,  were  the  children  of  Michael 
Breen,  a  resident  and  taxpayer  of  district  No.  5,  township  2,  range 
12,  Lawrence  county.  111.,  of  which  district  the  appellants  were  di- 
rectors. These  directors,  acting  under  a  certain  rule  and  order  of 
the  state  board  of  health,  made  a  general  order,  applicable  to  all  schools 
in  their  district,  requiring  that  all  pupils  should  be  vaccinated  before 
being  admitted  to  such  schools.  They  also  employed  a  physician  to 
vaccinate  the  pupils,  and  instructed  and  ordered  the  teacher  of  the 
school  in  question  to  impart  no  instruction  to  appellees  until  they 
should  comply  with  said  order;  and  appellees  were  refused  admission 
to  the  school  on  the  sole  ground  that  they  had  failed  and  refused  to 
comply  with  such  order,  the  father  of  appellees  absolutely  refusing  to 
permit  his  children  to  be  vaccinated.  The  directors  acted  in  good 
faith,  under  the  belief  that  they  were  performing  a  duty  imposed  upon 
them  by  law,  and  used  no  direct  force  upon  appellees,  but  simply  de- 
nied them  admission  to  the  school,  after  repeated  refusals  to  obey 
the  orders  relating  to  vaccination. 

In  their  answer  to  the  petition,  the  directors  alleged  that  the  state 
board  of  health  made  and  promulgated  the  following  order :  "Re- 
solved, that,  by  the  authority  vested  in  this  board,  it  is  hereby  ordered 
that  on  and  after  January  1,  1882,  no  pupil  shall  be  admitted  to  any 
public  school  in  the  state  without  presenting  satisfactory  evidence  of 
proper  and  successful  vaccination ;"  and  that  at  the  January  meeting, 
1894,  the  said  state  board  of  health  passed  the  following  resolution : 
"Resolved,  that  the  power  of  the  state  board  of  health,  under  the  law 
creating  said  board  of  health,  to  order  the  vaccination  of  all  school 
children,  is  clear  and  unquestionable.  The  consequent  duty  of  the 
board  of  school  directors  to  see  that  such  order  is  strictly  enforced  in 
their  respective  districts  is  equally  clear,  and  the  said  order  of  the 
board  of  health  is  their  sufficient  authority  for  so  doing."  These  or- 
ders of  the  state  board  of  health  were  sent  to  the  superintendent  of 
schools  of  said  Lawrence  county,  and  were  by  him  transmitted  to  the 
appellants,  with  written  directions  of  the  state  board  of  health  to  en- 
force the  same;  and  appellants  made  an  order  that  all  children  at- 
tending the  said  school  in  their  district  should  be  vaccinated,  or  should 
show  a  physician's  certificate  of  previous  vaccination,  as  a  condition 
of  attendance  upon  the  said  school. 

The  trial  court  rendered  judgment  against  appellants,  granting  the 
peremptory  writ  of  mandamus  as  prayed,  and  assessed  appellees'  dam- 
ages in  the  trespass  case  at  one  cent.  These  judgments  have  been  af- 
firmed, on  appeal,  by  the  Appellate  Court,  and  appellants  have  prose- 
cuted this  appeal  to  this  court.  So  far  as  the  record  discloses,  ap- 
pellees had  not  been  exposed  to  infection  by  smallpox,  but  were  in 
perfect  health,  and  there  was  no  reason  for  their  exclusion  except  that 


Ch.  1)        EXECUTIVE,  QUASI  JUDICIAL,  AND   QUASI   LEGISLATIVE.  45 

they  had  not  been  vaccinated.  There  was  no  epidemic  of  smallpox 
prevailing  or  apprehended  in  the  vicinity  of  the  school. 

The  record  presents  the  question  whether  or  not  the  state  board  of 
health,  or  the  appellants,  as  such  school  directors,  acting  under  its  or- 
ders or  otherwise,  had  any  power  to  impose,  as  a  condition  of  the  ad- 
mission of  appellees  to  the  public  schools,  the  requirement  of  vac- 
cination ;  and,  further,  if  such  power  existed,  and  could  be  enforced 
as  a  police  regulation,  for  the  preservation  of  the  public  health,  and 
to  prevent  the  spread  of  contagious  and  infectious  diseases,  was  the 
regulation  and  its  enforcement,  under  the  facts  appearing  in  the  record, 
a  reasonable  one  ? 

Section  2  of  the  act  creating  the  board  of  health  (Laws  1877,  p. 
208)  is  as  follows :  "The  state  board  of  health  shall  have  the  general 
supervision  of  the  interests  of  the  health  and  life  of  the  citizens  of 
the  state.  They  shall  have  charge  of  all  matters  pertaining  to  quar- 
antine, and  shall  have  authority  to  make  such  rules  and  regulations, 
and  such  sanitary  investigations,  as  they  may  from  time  to  time  deem 
necessary  for  the  preservation  or  improvement  of  public  health ;  and 
it  shall  be  the  duty  of  all  police  officers,  sheriffs,  constables,  and  all 
other  officers  and  employees  of  the  state  to  enforce  such  rules  and 
regulations,  so  far  as  the  efficiency  and  success  of  the  board  may  de- 
pend upon  their  official  co-operation."  Section  3  provides  that  the 
board  of  health  shall  have  supervision  over  the  state  system  of  regis- 
tration of  births  and  deaths,  as  hereinafter  provided:  "They  shall 
make  up  such  forms  and  recommend  such  legislation  as  shall  be  deemed 
necessary  for  the  thorough  registration  of  vital  and  mortuary  statistics 
throughout  the  state.  The  secretary  of  the  board  shall  be  superintend- 
ent of  such  registration."  Section  4  makes  it  the  duty  of  all  physicians 
and  accouchers  to  report  to  the  county  clerk  "all  births  and  deaths 
which  may  come  under  their  supervision,  with  a  certificate  of  the 
cause  of  death,  and  such  correlative  facts  as  the  board  may  require 
in  the  blank  forms  furnished  as  hereinafter  provided."  Section  8  re- 
quires county  clerks  to  render  complete  reports  of  all  births,  marriages, 
and  deaths  to  the  state  board  of  health;  and  section  9  requires  the 
board  of  health  to  prepare  the  necessary  forms.  Section  12  provides 
for  an  annual  report  by  the  board  to  the  Governor,  "and  such  report 
shall  include  so  much  of  the  proceedings  of  the  board,  and  such  in- 
formation concerning  vital  statistics,  and  knowledge  respecting  dis- 
eases, and  such  instruction  on  the  subject  of  hygiene,  as  may  be  thought 
useful  by  the  board  for  dissemination  among  the  people,  with  such 
suggestions  as  to  legislative  action  as  they  may  deem  necessary." 

By  reference  also  to  the  act  of  the  General  Assembly  to  regulate  the 
practice  of  medicine  in  this  state,  which  was  passed  at  the  same  session 
of  the  Legislature,  and  which  makes  reference  to  the  state  board  of 
health,  and  provides  for  the  examination  and  licensing  by  said  board 
of  persons  desiring  to  practice  medicine,  it  clearly  appears  that  one 
of  the  most  important  duties  of  the  board  was  to  ascertain  and  certify 


46  ADMIMSTKATIVE   TOAVER   AND   ACTION.  (Part    1 

to  the  qualifications  of  practicing  physicians  and  surgeons,  and  to 
detect  quacks,  and  to  prevent  them  and  all  ignorant  pretenders  from 
imposing  upon  the  sick  and  helpless. 

It  is  clear  that  no  such  power  as  claimed  by  the  state  board  of  health 
has  been  conferred  upon  it,  unless  by  the  broad  and  general  language 
of  the  first  section  of  the  act  creating  it.  But  the  general  terms  there 
employed  must  be  construed  in  relation  to  the  more  specific  duties  im- 
posed and  powers  conferred  by  the  act  taken  as  a  whole,  and,  when 
thus  construed,  these  general  terms  are  restricted  so  as  to  express  the 
true  intent  and  meaning  of  the  Legislature.  Take,  for  example,  the 
first  sentence,  viz. :  "The  state  board  of  health  shall  have  the  gen- 
eral supervision  of  the  interests  of  the  health  and  life  of  the  citizens 
of  the  state."  The  scope  of  the  language  there  employed  is  prac- 
tically unlimited,  and  were  it  not  held  to  be  restricted  by  well-known 
legal  principles,  applicable  in  the  interpretation  and  construction  of 
statutes,  it  would  appear  to  confer  more  power  on  this  board  than  the 
Legislature  itself  possessed.  Plainly,  it  was  not  intended  that  any 
general  supervisory  power  over  the  health  and  lives  of  citizens  of 
the  state  should  be  exercised  by  the  board  otherwise  than  in  conformity 
to  law,  and  such  as  should  be  necessary,  within  reasonable  limitations, 
in  the  performance  of  the  administrative  duties  which  were  or  should 
be  imposed  upon  the  board  by  statute.  It  had  and  could  have  no  legis- 
lative power.  Its  duties  were  purely  ministerial,  and  the  provision  of 
the  statute  authorizing  the  board  to  make  such  rules  and  regulations 
MS  it  should  from  time  to  time  deem  necessary  for  the  preservation  or 
improvement  of  the  public  health  cannot  be  held  to  confer  that  broad 
'liscretionary  power  contended  for,  to  prescribe  conditions  upon  which 
the  citizen  of  the  state  may  exercise  rights  and  privileges  guaranteed 
to  him  by  public  law. 

In  Huesing  v.  City  of  Rock  Island,  128  111.  4G5,  21  N.  E.  558,  15 
Am.  St.  Rep.  129,  it  was  contended  that  the  city  had  the  power,  under 
clause  78,  §  1,  art.  5,  of  the  city  incorporation  act,  to  construct  and 
maintain  a  city  abattoir,  as  a  sanitary  measure.  This  clause  is  as  fol- 
lows :  "To  do  all  acts,  make  all  regulations,  which  may  be  necessary 
or  expedient  for  the  promotion  of  health  or  the  suppression  of  disease." 
This  court,  however,  held  that,  in  view  of  the  fact  that  the  same  sec- 
tion contained  other  provisions  authorizing  the  city  council  to  do  cer- 
tain specified  acts  for  the  preservation  of  the  health  of  the  city  and 
the  suppression  of  disease,  the  general  provision  did  not  enlarge  the 
powers  conferred  by  the  special  provisions. 

As  recently  held  by  the  Supreme  Court  of  Wisconsin  in  a  similar 
case,  we  are  of  the  opinion  that  the  powers  of  the  board  are  limited 
to  the  proper  enforcment  of  statutes,  or  provisions  thereof,  having 
reference  to  emergencies  requiring  action  on  the  part  of  the  agencies 
of  government  to  preserve  the  public  health,  and  to  prevent  the  spread 
of  contagious  or  infectious  diseases.  It  will  be  observed  that  after  the 
first  section  the  powers  and  duties  of  the  board  with  reference  to  dif- 


Ch.  1)        EXECUTIVE,  QUASI   JUDICIAL,  AXD   QUASI   LEGISLATIVE.  47 

ferent  subjects  are  minutely  specified,  and  it  is  required  "to  make 
reports  to  the  Governor,  and  to  include  therein  such  information  con- 
cerning vital  statistics,  and  such  knowledge  respecting  diseases,  and 
such  instruction  on  the  subject  of  hygiene  as  may  be  thought  useful 
by  the  board  for  dissemination  among  the  people  with  such  suggestions 
as  to  legislative  action  as  they  may  deem  necessary."  Its  duty  to 
recommend  legislation  is  repeated  more  than  once  in  the  act,  in  con- 
nection with  specifications  of  the  powers  and  duties  of  the  board ; 
and  from  no  point  of  view  can  we  regard  it  as  having  been  within  the 
legislative  intent  to  confer,  by  the  first  section,  plenary  powers  upon 
the  board  in  all  matters  pertaining  to  the  public  health,  without  regard 
to  other  provisions  of  the  statute,  or  further  action  by  the  Legislature. 

Section  1  of  article  8  of  the  Constitution  provides  that  "the  General 
Assembly  shall  provide  a  thorough  and  efficient  system  of  free  schools, 
whereby  all  children  of  this  state  may  receive  a  good  common  school 
education."  And  the  statute  provides  that  the  directors  "shall  estab- 
lish and  keep  in  operation  for  at  least  one  hundred  and  ten  days  of 
actual  teaching  in  each  year  *  *  *  ^  sufficient  number  of  free 
schools  for  the  accommodation  of  all  children  in  the  district  over  the 
age  of  six  and  under  twenty-one  years,  and  shall  secure  to  all  such 
children  the  right  and  opportunity  to  an  equal  education  in  such 
schools."  And  the  statute  further  provides  that  they  shall  adopt  and 
enforce  all  rules  and  regulations  for  the  management  and  government 
of  the  schools,  and  may  suspend  or  expel  pupils  who  may  be  guilty  of 
gross  disobedience  or  misconduct.  The  statute  also  contains  provi- 
sions of  similar  import  relating  to  schools  in  more  populous  districts 
and  cities.  It  is  therefore  seen  that  the  right  or  privilege  of  attend- 
ing the  public  schools  is  given  by  law  to  every  child  of  proper  age  in 
the  state,  and  there  is  nowhere  to  be  found  any  provision  of  law  pre- 
scribing vaccination  as  a  condition  precedent  to  the  exercise  of  this 
right. 

Whether  the  Legislature  has  the  power  to  make  such  a  requirement 
or  not,  it  is  not  necessary  here  to  consider ;  it  is  sufficient  that  it  has 
not  done  so,  and  it  cannot  be  supposed  that  the  Legislature  has  under- 
taken, and  not  expressly,  but  by  mere  implication  from  the  general 
language  used  in  creating  the  state  board,  to  confer  upon  that  mere 
administrative  body  such  vast  power  over  the  rights  and  liberties  of 
the  individual  citizen  as  to  deprive  him  of  his  constitutional  and  stat- 
utory rights,  unless  he  shall  submit  his  body  to  be  inoculated  with 
Vaccine  virus,  as  a  mere  precaution  against  some  possible  future  con- 
tagion of  smallpox.  It  is  doubtless  true  that  in  a  large  number  of 
school  districts  in  interior  parts  of  the  state  no  case  of  smallpox  has 
ever  existed  in  the  history  of  the  state,  and  yet,  by  this  order  of  the 
board,  no  citizen  who  has  children  to  educate,  although  compelled  by 
law  to  pay  taxes  to  support  the  public  schools,  can  send  his  children 
to  such  schools  without  first  having  such  child  vaccinated,  as  a  precau- 


48  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

tion  against  a  disease  which  had  never  appeared,  and  where  there 
was  no  apparent  danger  that  it  would  ever  appear  in  the  vicinity. 

The  power  to  compel  vaccination,  or  to  require  it  as  a  condition 
precedent  to  the  exercise  of  some  right  or  privilege  guaranteed  to  the 
citizen  by  public  law,  can  be  derived  from  no  other  source  than  the 
general  police  power  of  the  state,  and  can  be  justified  upon  no  other 
ground  than  as  a  necessary  means  of  preserving  the  public  health. 
Without  the  necessity,  or  reasonable  grounds  upon  which  to  conclude 
that  such  necessity  exists,  the  power  does  not  exist.  As  such  the  board 
of  health  has  no  more  power  over  the  public  schools  than  over  private 
schools  or  other  public  assemblages,  and  its  order  applying  to  public 
schools  only,  requiring  vaccination  as  a  prerequisite  to  the  exercise 
of  the  right  to  attend  a  public  school  could  be  justified  only  upon  rea- 
sonable grounds  appearing  that  the  contagion  of  smallpox  would  more 
likely  originate  in  or  be  disseminated  from  the  public  schools  than 
from  other  assemblages.  Whether  it  might  be  invested  with  power  in 
this  respect  is  a  question  not  involved  here,  and  not  necessary  to  con- 
sider. 

While  school  directors  and  boards  of  education  are  invested  with 
power  to  establish,  provide  for,  govern,  and  regulate  public  schools, 
they  are  in  these  respects  nowise  subject  to  the  direction  or  control 
of  the  state  board  of  health,  and,  as  before  pointed  out,  they  have  no 
authority  to  exclude  children  from  the  public  schools  on  the  ground 
that  they  refuse  to  be  vaccinated,  unless,  indeed,  in  cases  of  emer- 
gency, in  the  exercise  of  the  police  power,  it  is  necessary,  or  reasonably 
appears  to  be  necessary,  to  prevent  the  contagion  of  smallpox.  Un- 
doubtedly, also  children  infected  or  exposed  to  smallpox  may  be  tem- 
porarily excluded,  or  the  school  may  be  temporarily  suspended;  but, 
like  the  exercise  of  similar  power  in  other  cases,  it  is  justified  by  the 
emergency,  and,  like  the  necessity  which  gives  rise  to  it,  ceases  when 
the  necessity  ceases. 

No  one  would  contend  that  a  child  could  be  permanently  excluded 
from  a  public  school  because  it  had  been  exposed  to  smallpox,  or  that 
the  school  could  be  permanently  closed,  because  of  the  remote  fear 
that  the  disease  of  smallpox  might  appear  in  the  neighborhood,  and 
that,  if  the  school  should  then  be  open  and  children  in  attendance 
upon  it,  the  public  would  be  exposed  to  the  contagion.  And,  upon 
the  same  line  of  reasoning,  without  a  law  making  vaccination  compul- 
sory, or  prescribing  it,  upon  grounds  deemed  sufficient  by  the  Legis- 
lature as  necessary  to  the  public  health,  as  a  condition  of  admission  to 
or  attendance  upon  the  public  schools,  neither  the  state  board  nor  any 
local  board  has  any  power  to  make  or  enforce  a  rule  or  order  having 
the  force  of  a  general  law  in  the  respects  mentioned. 

We  are  not  called  upon  to  consider  whether  or  not  vaccination  is  a 
preventative,  or  the  best  known  preventative,  of  smallpox.  That  it 
is  so  seems  to  be  the  consensus  of  opinion  of  a  learned  and  honorable 
profession,  borne  out  by  the  history  of  its  use  for  a  century,  and  we 


Ch.  1)        EXECUTIVE,  QUASI   JUDICIAL,  AND   QUASI   LEGISLATIVE.  49 

can  only  so  regard  it ;  but,  when  compulsorily  applied,  it  must,  like  all 
other  civil  regulations,  be  applied  in  conformity  to  law.  However 
fully  satisfied,  by  learning  and  experience,  a  board  might  be  that  anti- 
toxine  would  prevent  the  spread  of  diphtheria,  no  one  would  contend 
that  a  rule  enforcing  its  use  as  a  condition  precedent  to  the  admis- 
sion of  a  child  to  the  public  schools  would,  as  the  law  now  is,  be  valid. 
It  is  a  matter  of  common  knowledge  that  the  number  of  those  who 
seriously  object  to  vaccination  is  by  no  means  small,  and  they  can- 
not, except  when  necessary  for  the  public  health  and  in  conformity 
to  law,  be  deprived  of  their  right  to  protect  themselves  and  those 
under  their  control  from  an  invasion  of  their  liberties  by  a  practically 
compulsory  inoculation  of  their  bodies  with  a  virus  of  any  description, 
however  meritorious  it  might  be. 

The  same  conclusion  was  reached  bv  the  Supreme  Court  of  Wis- 
consin in  State  v.  Burdge,  95  Wis.  390,  TO  N.  W.  347,  37  L.  R.  A. 
157,  60  Am.  St.  Rep.  123,  in  a  case  similar  in  all  respects  to  this.  In 
that  case  the  court  also,  upon  the  question  of  the  power  of  the  Leg- 
islature to  delegate  to  such  board  the  power  to  make  a  rule  having 
the  force  of  a  general  law,  cited  Dowling  v.  Insurance  Co.,  92  Wis. 
63,  65  N.  W.  738,  31  L.  R.  A.  112,  which  held  that  the  Legislature 
could  not  delegate  the  insurance  commissioner  the  power,  essentially 
legislative,  to  prepare,  approve,  and  adopt  a  form  of  "a.  standing  fire 
insurance  policy"  for  use  in  that  state,  and  which  use  was  to  be  en- 
forced by  penal  sanction  of  the  act.  See,  also,  on  this  subject,  O'Neil 
V.  Insurance  Co.,  166  Pa.  72,  30  Atl.  9-15,  and  Anderson  v.  Assurance 
Co.,  59  Minn.  182,  63  N.  W.  241,  28  L.  R.  A.  609,  50  Am.  St.  Rep. 
400.     See,  also,  Tugman  v.  City  of  Chicago,  78  111.  405. 

As  said  in  State  v.  Young,  29  Minn.  474,  9  N.  W.  737 :  "It  is  a 
principle  not  questioned  that,  except  where  authorized  by  the  Consti- 
tution, as  in  respect  to  municipalities,  the  Legislature  cannot  delegate 
legislative  power — cannot  confer  on  any  body  or  person  the  power  to 
determine  what  shall  be  law.  The  Legislature  only  must  determine 
this." 

Hurst  V.  Warner,  102  Mich.  238,  60  N.  W.  440,  26  L.  R.  A.  484, 
47  Am.  St.  Rep.  525,  construed  an  act  of  the  Michigan  Legislature 
which  provided  that,  in  certain  contingencies  specified  in  the  act,  the 
state  board  of  health  should  be  authorized  to  establish  a  quarantine, 
and  to  make  rules  for  the  disinfection  of  baggage  belonging  to  persons 
coming  from  a  country  where  contagious  disease  exists,  and,  through 
an  inspector  acting  thereunder,  to  detain  for  disinfection  baggage  of 
passengers,  passing  through  the  state,  and  coming  from  localities  where 
a  dangerous,  communicable  disease  exists.  It  was  held  by  the  court 
that  the  act  did  not  authorize  a  rule  subjecting  the  baggage  of  all  im- 
migrants to  disinfection,  whether  such  immigrant  came  from  a  part 
or  locality  where  any  dangerous,  communicable  disease  existed  or  not. 

The  case  of  Abeel  v.  Clark,  84  Cal.  226,  24  Pac.  383,  was  a  manda- 
Fr.Adm.Law. — 4 


50  ADMINISTRATIVE   TOWER   AND   ACTION.  (Part    1 

nius  proceeding  to  compel  the  principal  of  a  public  school  to  admit 
Abeel  as  a  scholar,  who  had  been  refused  admission  because  he  had  not 
complied  with  the  vaccination  act.  This  act  provided  that  the  school 
trustees  and  board  shall  "exclude  from  the  benefits  of  the  common 
schools  any  child  or  any  person  who  has  not  been  vaccinated."  The  act 
was  held  constitutional.  The  court  says :  "Vaccination,  then,  being  the 
most  effective  method  known  of  preventing  the  spread  of  the  disease 
referred  to  (smallpox),  it  was  for  the  Legislature  to  determine  whether 
the  scholars  of  the  public  schools  should  be  subjected  to  it." 

The  case  of  Duffield  v.  School  Dist.,  163  Pa.  4TG,  29  Atl.  742,  25 
h.  R.  A,  152,  was  a  mandamus  proceeding  to  compel  the  admission  of 
the  plaintiff's  minor  child  into  the  common  schools  of  Williamsport. 
The  facts  in  this  case  were  that  there  was  an  ordinance  of  the  city 
of  Williamsport  in  force  providing  that  no  pupil  "shall  be  permitted 
to  attend  any  public  or  private  school  in  said  city  without  a  certificate 
of  a  practicing  physician  that  such  pupil  has  been  subjected  to  the  pro- 
cess of  vaccination"  ;  that  smallpox  was  then  existing  in  Williamsport, 
and  had  been  epidemic  in  many  near-by  cities  and  towns ;  that  the 
board  of  health  and  the  school  board,  in  view  of  the  general  alarm 
prevailing  in  the  city  over  the  report  that  a  case  of  smallpox  was  in 
the  city,  had  adopted  a  resolution  in  conformity  with  said  city  ordi- 
nance. The  questions  raised  related  to  the  power  of  the  school  board 
to  adopt  reasonable  health  regulations,  and  to  the  reasonableness  of 
the  particular  regulation  complained  of,  and  the  action  of  the  board 
was  sustained.  But  the  case  was  unlike  the  one  at  bar  in  the  fact  that 
smallpox  was  then  in  the  city,  and  was  prevalent  in  adjoining  com- 
munities. A  similar  conclusion  was  reached  in  Bissell  v.  Davison,  65 
Conn.  183,  32  Atl.  348,  29  L.  R.  A.  251,  but  the  general  statute  of 
Connecticut  had  expressly  conferred  upon  the  school  committee  the 
power  exercised  by  it. 

The  cases  of  In  re  Wahers,  84  Hun,  457,  32  N.  Y.  Supp.  322,  and 
Abeel  v.  Clark,  84  Cal.  226,  24  Pac.  383,  involved  the  constitutionality 
of  statutes  requiring  all  children  to  be  vaccinated  before  being  admitted 
to  the  public  schools,  and  such  statutes  were  held  to  be  constitutional. 
That  question  is  not  involved  here,  and  the  reasoning  employed  in 
those  cases  does  not  apply  where  this  legislative  power  is  exercised  by 
an  administrative  board,  and  not  by  the  Legislature  itself.  Nor  can  the 
rule  in  question  be  regarded  as  a  reasonable  one  where,  as  in  this 
case,  smallpox  did  not  exist  in  the  community,  and  where  there  was 
no  cause  to  apprehend  that  it  was  approaching  the  vicinity  of  the 
school,  or  likely  to  become  prevalent  there.  The  record  wholly  fails 
to  show  that  there  were  any  grounds  upon  which  the  board  could  have 
any  reasonable  belief  that  the  public  health  was  in  any  danger  what- 
ever. 

Neither  the  board  of  health  nor  the  board  of  directors  having  any 
power  to  make  and  enforce  the  order  in  question  under  the  facts  of 


Ch.  1)        EXECUTIVE,  QUASI   JUDICIAL,  AND   QUASI   LEGISLATIVE.  51 

this  case,  it  follows  that  appellees  were  unlawfully  excluded  from  the 
school. 

The  powers  of  school  officers  under  the  statute  have  been  consid- 
ered by  this  court  in  numerous  cases.  Rulison  v.  Post,  79  111.  567 ; 
Trustees  of  Schools  v.  People,  87  111.  303,  29  Am.  Rep.  55 ;  McCor- 
mick  v.  Burt,  95  111.  263,  35  Am.  Rep.  163,  Chase  v.  Stephenson, 
71  111.  383 ;  People  v.  Board  of  Education,  101  111.  308,  40  Am.  Rep. 
196;  and  other  cases.  But  nothing  said  in  any  of  those  cases  sus- 
tains the  contention  of  appellants. 

The  judgment  of  the  Appellate  Court  affirming  the  judgment  of  the 
circuit  court  is  affirmed.    Judgment  affirmed.-^ 


ARMS  v.  AYER. 

(Supreme  Court  of  Illinois,  1901.     192  III.  GOl.  61  N.  E.  851,  5S  L.  R.  A. 
277,  85  Am.  St.  Rep.  357.) 

Action  by  Aura  C.  Arms  against  Frederick  Ayer  and  others.  From 
a  judgment  in  defendants'  favor,  plaintiff  appeals.    Reversed. 

The  appellant  sued  appellees  in  the  superior  court  of  Cook  county, 
in  case,  to  recover  damages  for  unlawfully  causing  the  death  of  her 
intestate.  The  declaration  is  very  voluminous,  consisting  of  10  counts, 
to  each  of  which  the  defendants  interposed  a  general  and  special  de- 
murrer. The  circuit  court  sustained  the  demurrer,  and  gave  judg- 
ment for  the  defendants.     This  appeal  is  from  that  judgment. 

The  cause  of  action  in  each  count  of  the  declaration  is  based  upon 
an  alleged  violation  of  the  fire-escape  act,   approved  IMay  27,  1897 

2  5  "Neither  the  holding  of  the  Supreme  Court  of  Illinois  nor  that  of  the 
Wisconsin  Supreme  Court  in  the  cases  mentioned  [Potts  v.  Breen,  167  111.  67. 
47  N.  E.   81,  39  L.  R.  A.   152,  59  vVm.    St.  Rep.   262    (1897)  ;    State  ex  rel. 
Adams  v.  Burdge,  95  Wis.  390,  70  N.  W.  347.  37  L.  R.  A.   157,  60  Am.  St. 
Rep.  123  (1897)]  can,  under  the  facts  be  said  to  militate  against  the  conclu- 
1    sion  which  we  reach  in  the  case  at  bar.     lu  fact,  there  is  much  asserted  in 
j    both  cases  which  may  be  said  to  be  in  harmony  with  our  holding  herein.     We 
;    are  not  called  upon,  however,  to  decide  whether  a  rule  of  either  the  state 
j    board  or  local  board  of  health  can  be  carried  beyond  the  limits  of  the  facts 
!    of  this  case.    Appellant  contends  that,  under  the  order  of  the  local  board,  his 
'    son  was  to  be  permanently  expelled  from  the  public  schools  of  the  city  of 
I    Terre  Haute  unless  he  submitted  to  vaccination.     A"o  such  unreasonable  in- 
terpretation can  be  placed  upon  the  rule  or  order  in  question.    The  order  was 
j    the  offspring,  as  we  have  seen,  of  an  emergency  arising  from  a  reasonable  ap- 
■    prehension  upon  the  board's  part  that  smallpox  would  become  epidemic  or 
!    prevalent  in  the  city  of  Terre  Haute.     The  rule  or  order  could  not  be  con- 
;    sidered  as  having  any  force  or  effect  beyond  the  existence  of  that  emergency: 
and  Kleo  Blue,  by  virtue  of  its  operation,  could  only  be  excluded  from  school 
I    upon  his  refusal  to  be  vaccinated,  until  after  the  danger  of  an  epidemic  of 
{   smallpox  had  disappeared.     Any  other  construction  than  this  would  render 
I   the  rule  or  order  absurd,  and  place  the  board  in  the  attitude  of  attempting 
)  to  usurp  authority.     Such  an  interpretation  is  not  authorized  when  a  more 
I  reasonable  one  can  be  supplied."     Blue  v.  Beach,  155  Ind.  121,  140,  56  N.  E. 
I  89,  50  L.  R.  A.  64,  80  Am.  St.  Rep,  195  (1900). 


52  ADMINISTRATIVE   POWER  AND  ACTION.  (Part    1 

(Laws  1897,  p.  222),  and  the  general  demurrer  goes  to  the  vaUdity  of 
the  act.    It  is  as  follows : 

"Section  1.  That  within  three  (3)  months  next  after  the  passage 
of  this  act  all  buildings  in  this  state  which  are  four  or  more  stories 
in  height,  excepting  such  as  are  used  for  private  residences  exclusively, 
but  including  flats  and  apartment  buildings,  shall  be  provided  with  one 
or  more  metallic  ladder  or  stair  fire-escapes  attached  to  the  outer  walls 
thereof,  and  provided  with  platforms  of  such  form  and  dimensions, 
and  such  proximity  to  one  or  more  windows  of  each  story  above  the 
first,  as  to  render  access  to  such  ladder  or  stairs  from  each  such  story 
easy  and  safe,  and  shall  also  be  provided  with  one  or  more  automatic 
metallic  fire-escapes,  or  other  proper  device,  to  be  attached  to  the  in- 
side of  said  buildings  so  as  to  afford  an  effective  means  of  escape  to 
all  occupants  who,  for  any  reason,  are  unable  to  use  said  ladders  or 
stairs ;  the  number,  location,  material  and  construction  of  such  escapes 
to  be  subject  to  the  approval  of  the  inspector  of  factories:  provided, 
however,  that  all  buildings  more  than  two  stories  in  height,  used  for 
manufacturing  purposes,  or  for  hotels,  dormitories,  schools,  seminaries, 
hospitals,  or  asylums,  shall  have  at  least  one  such  ladder  fire-escape 
for  every  fifty  (50)  persons,  and  one  such  automatic  metallic  escape, 
or  other  device,  for  every  twenty-five  (25)  persons,  for  which  work- 
ing, sleeping  or  living  accommodations  are  provided  above  the  second 
stories  of  said  buildings ;  and  that  all  public  halls  which  provide  seat- 
ing room  above  the  first  or  ground  story  shall  be  provided  with  such 
numbers  of  said  ladder  and  other  fire-escapes  as  said  inspector  of 
factories  shall  designate. 

"Sec.  2.  All  buildings  of  the  number  of  stories  and  used  for  the 
purposes  set  forth  in  section  1  of  this  act  which  shall  be  hereafter 
erected  within  this  state  shall,  upon  or  before  their  completion,  each 
be  provided  with  fire-escapes  of  the  kind  and  number  and  in  the  man- 
ner set  forth  in  this  act. 

"Sec.  3.  It  shall  be  the  duty  of  said  inspector  of  factories  to  serve 
a  written  notice,  in  behalf  of  the  people  of  the  state  of  Illinois,  upon 
the  owner  or  owners,  trustees  or  lessees,  or  occupant,  of  any  build- 
ing within  this  state  not  provided  with  fire-escapes  in  accordance  with 
the  requirements  of  this  act,  commanding  such  owner,  trustee,  lessee 
or  occupant,  or  either  of  them,  to  place  or  cause  to  be  placed  upon 
such  building  such  fire-escape  or  escapes  as  provided  in  section  1  of 
this  act,  within  thirty  (30)  days  after  the  service  of  such  notice.  *    *    * 

"Sec.  4.  Any  such  owner  or  owners,  trustee,  lessee,  or  occupant,  or 
either  of  them,  so  served  with  notice  as  aforesaid,  who  shall  not,  within 
thirty  (30)  days  after  the  service  of  such  notice  upon  him  or  them, 
place  or  cause  to  be  placed  such  fire-escape  or  escapes  upon  such  build- 
ing as  required  by  this  act  and  the  terms  of  such  notice,  shall  be  sub- 
ject to  a  fine  of  not  less  than  $25  or  more  than  $200,  and  to  a  further 
fine  of  $50  for  each  additional  week  of  neglect  to  comply  with  such 
notice. 


Ch.  1)        EXECUTIVE,  QUASI  JUDICIAL,  AND   QUASI  LEGISLATIVE.  53 

"Sec.  5.  The  erection  and  construction  of  any  and  all  fire-escapes 
provided  for  in  this  act  shall  be  under  the  direct  supervision  and  con- 
trol of  said  inspector  of  factories,  and  it  shall  be  unlawful  for  any  per- 
son or  persons,  firm  or  corporation  to  erect  or  construct  any  fire-escape 
or  escapes,  except  in  accordance  with  a  written  permit  first  had  and 
obtained  and  signed  by  said  inspector  of  factories,  which  permit  shall 
prescribe  the  number,  location,  material,  kind  and  manner  of  construc- 
tion of  such  fire-escape. 

"Sec.  6.  Any  person  or  persons,  firm  or  corporation,  who  shall  be 
required  to  place  one  or  more  fire-escapes  upon  any  building  or  build- 
ings, under  the  provisions  of  this  act,  shall  file  in  the  office  of  said  in- 
spector of  factories  a  written  application  for  a  permit  to  erect  or  con- 
struct such  fire-escape  or  escapes,  which  application  shall  briefly  de- 
scribe the  character  of  such  building  or  buildings,  the  height  and  num- 
ber of  stories  thereof,  the  number  of  fire-escapes  proposed  to  be  placed 
thereon,  the  purposes  for  which  such  building  or  buildings  is  or  are 
used,  and  the  greatest  number  of  people  who  use  or  occupy  or  are 
employed  in  such  building  or  buildings  above  the  second  stories  thereof 
at  any  one  time."     *     *     * 

Wilkin,  C.  J.'®  (after  stating  the  facts).  The  argument  in  this 
case  is  mainly  upon  the  constitutionality  and  validity  of  the  act  of  1897, 
and  we  shall  confine  our  consideration  of  the  case  to  that  question. 
We  see  no  substantial  objection  to  at  least  some  of  the  counts  on  the 
special  demurrer. 

The  first  objection  made  to  the  statute  by  counsel  for  appellees  is 
that  it  imposes  legislative  power  upon  the  inspector  of  factories,  in  that 
it  authorizes  him  to  determine  how  many,  and  in  what  position,  fire- 
escapes  shall  be  placed,  etc.  It  must  be  admitted  that  the  act  is  loosely 
drawn,  but  the  rule  that  it  is  the  duty  of  courts  to  so  construe  statutes 
as  to  uphold  their  constitutionality  and  validity,  if  it  can  be  reasonably 
done,  is  so  well  established  that  the  citation  of  authorities  is  needless. 
In  other  words,  if  the  proper  construction  of  a  statute  is  doubtful, 
courts  must  resolve  the  doubt  in  favor  of  the  validity  of  the  law.  Stat- 
utes and  city  ordinances  providing  for  fire-escapes  are  usually  some- 
what general  in  their  enactments,  and  necessarily  so,  for  the  reason 
that  it  is  impossible  for  the  Legislature  to  describe  in  detail  how  many 
fire-escapes  shall  be  provided,  how  they  shall  be  constructed,  and 
where  they  shall  be  located,  in  order  to  serve  the  purpose  of  protect- 
ing the  lives  of  occupants,  in  view  of  the  varied  location,  construction, 
and  surroundings  of  buildings ;  and  hence,  so  far  as  we  have  been 
able  to  ascertain,  acts  similar  to  the  first  section  of  this  statute  have 
been  sustained  in  other  states,  though  perhaps  the  question  here  raised 
has  never  been  directly  presented.  Rose  v.  King,  49  Ohio  St.  213,  30 
N.  E.  2G7,  15  L.  R.  A.  160 ;  Willy  v.  Mulledy,  78  N.  Y.  310,  34  Am. 
Rep.  536;  Pauley  v.  Lantern  Co.,  131  N.  Y.  90,  29  N.  E.  999,  15  L. 
R.  A.  194;    Schott  v.  Harvey,  105  Pa.  222,  51  Am.  Rep.  201;   City  of 

26  Portions  of  this  case  are  omitted. 


54  ADMINISTRATIVE  POWER  AND  ACTION,  (Part    1 

Cincinnati  v.  Steinkanip,  5i  Ohio  St.  284,  43  N.  E.  490 ;  Sewell  v. 
iMoore,  166  Pa.  570,  31  Atl.  370;  Keely  v.  O'Conner,  106  Pa.  321; 
In  re  Fire-Escapes,  2  Pa.  Dist.  R.  623. 

The  general  rule  is  that  a  statute  must  be  complete  when  it  leaves 
the  Legislature — as  to  what  the  law  is — leaving  its  execution  to  be 
vested  in  third  parties.  Thus  it  was  said  in  Dowling  v.  Insurance 
Co.,  93  Wis.  63,  65  N.  W.  738,  31  L.  R.  A.  112:  "The  result  of  all 
the  cases  on  this  subject  is  that  a  law  must  be  complete  in  all  its 
terms  and  provisions  when  it  leaves  the  legislative  branch  of  the  gov- 
ernment, and  nothing  must  be  left  to  the  judgment  of  the  electors,  or 
other  appointee  or  delegate  of  the  Legislature,  so  that  in  form  and  sub- 
stance it  is  a  law  in  all  its  details  in  prsesenti,  but  which  may  be  left  to 
take  effect  in  futuro,  if  necessary,  upon  the  ascertainment  of  any  pre- 
scribed fact  or  event."  And  it  is  said  in  Suth.  St.  Const.  §  68 :  "The 
true  distinction  is  between  a  delegation  of  power  to  make  the  law, 
which  involves  a  discretion  as  to  what  the  law  shall  be,  and  conferring 
an  authority  or  discretion  as  to  its  execution,  to  be  exercised  under  and 
in  pursuance  of  the  law.  The  first  cannot  be  done.  To  the  latter  no 
objection  can  be  made." 

In  People  v.  Reynolds,  5  Oilman,  1,  it  was  held  that  to  establish  the 
principle  that,  whatever  the  Legislature  may  do,  it  shall  do  in  every 
detail,  or  else  it  shall  go  undone,  would  be  almost  to  destroy  the  gov- 
ernment. It  is  there  said  (page  13) :  "Necessarily,  regarding  many 
things,  especially  affecting  local  or  individual  interests,  the  Legislature 
may  act  either  mediately  or  immediately.  We  see,  then,  that,  while 
the  Legislature  may  not  devest  itself  of  its  proper  functions  or  del- 
egate its  general  legislative  authority,  it  may  still  authorize  others  to 
do  those  things  which  it  might  properly,  yet  cannot  understandingly 
or  advantageously,  do  itself.  Without  this  power,  legislation  would 
become  oppressive  and  yet  imbecile." 

In  this  act  the  law  is  compjete  in  all  its  details,  requiring  the  fire- 
escapes  to  be  put  in  certain  buildings.  The  outside  escapes  must  be 
so  constructed  as  to  render  access  to  the  same  from  each  story  easy  and 
safe.  Though  meaningless  in  so  far  as  it  speaks  of  "automatic  metal- 
hc  fire-escapes,"  it  does  require  a  proper  device  to  be  attached  to  the 
inside  of  the  described  buildings,  so  as  to  afford  an  effective  means  of 
escape  to  all  occupants  who  for  any  reason  are  unable  to  use  the  lad- 
ders or  stairs.  In  the  execution  of  the  law  the  inspector  of  factories 
is  given  a  discretion  as  to  the  number,  location,  material,  and  con- 
struction of  such  escapes  in  each  and  every  building.  We  are  unable 
to  see  in  what  way  the  act,  thus  understood  and  construed,  delegates  to 
the  inspector  of  factories  legislative  power. 

Of  still  less  force  is  the  objection  that  the  act  confers  judicial  power 
upon  the  inspector  of  factories.  The  inspector  is  given  no  power  to 
judicially  determine  any  question,  but  acts  ministerially  in  the  super- 
vision of  the  building  of  fire-escapes.  Judicial  power  is  "the  power 
which  adjudicates  upon  and  protects  the  rights  and  interests  of  in- 


Ch.  1)        EXECUTIVE,  QUASI   JUDICIAL,  AND   QUASI   LEGISLATIVE.  55 

dividual  citizens,  and  to  that  end  construes  and  applies  the  law."  The 
judicial  power  is  never  extended  to  cases  of  the  exercise  of  judgment 
in  the  execution  of  a  ministerial  power.  Land  Owners  v.  People,  113 
III.  29().    *    *    * 

It  is  said  that,  "even  though  it  is  assumed  that  the  law  is  capable 
of  enforcement,  no  one  can  be  held  liable  for  the  nonperformance 
therewith  until  the  inspector  of  factories  has  served  the  notice  re- 
quired by  the  act."  With  this  contention  we  cannot  agree.  It  is  true, 
the  first  and  second  sections  do  not  say  who  shall  provide  the  re- 
quired fire-escape,  but  we  think  the  fair  and  reasonable  intendment  is 
that  the  owner  or  owners  shall  perform  the  duty ;  and  we  so  held  in 
construing  the  fire-escape  act  of  1885  (Laws  1885,  p.  201),  the  provi- 
sions of  which  in  this  regard  are  the  same  as  the  act  under  considera- 
tion, in  the  recent  case  of  Landgraf  v.  Kuh,  188  111.  484,  59  N.  E. 
501.  The  language  of  section  6,  "who  shall  be  required  to  place  one 
or  more  fire-escapes  upon  any  building  or  buildings,  under  the  provi- 
sions of  this  act,"  does  not  mean  who  shall  be  required  by  the  in- 
spector of  factories,  but  who  shall  be  required  by  the  act.  The  duty 
to  provide  fire-escapes  upon  buildings  described  in  section  1  does  not 
depend  upon  the  performance  of  any  duty  by  the  inspector  of  factories. 

In  McRickard  v.  Flint,  114  N.  Y.  233,  31  N.  E.  153,  the  language 
of  the  act  under  which  the  suit  was  brought  was,  "in  any  store  or 
building  in  the  city  of  New  York  in  which  there  shall  exist  or  be 
placed  any  hoisting  elevator  or  well-hole,  the  openings  thereof  through 
and  upon  each  floor  of  such  buildings  shall  be  provided  with  and 
protected  by  a  substantial  railing,  and  such  good  and  sufficient  trap- 
doors with  which  to  enclose  the  same,  as  may  be  directed  and  ap- 
proved by  the  superintendent  of  buildings" ;  and  it  was  held :  "The 
exercise  of  the  duty  imposed  upon  the  defendants  by  this  statute  was 
not  dependent  upon  any  action  of  the  superintendent  of  buildings. 
They  could  not  properly  delay  for  him  to  direct,  but  it  was  for  them 
to  call  on  him  for  directions  and  approval  in  that  respect." 

In  Willy  V.  Mulledy,  supra,  where  the  act  provided  "that  every 
building  in  the  city  of  Brooklyn  should  have  a  scuttle  or  place  of 
egress  in  the  roof  thereof,"  etc.,  and  also  that  certain  houses  "shall  be 
provided  with  such  fire-escapes  and  doors  as  shall  be  directed  and  ap- 
proved by  the  commissioner"  (of  the  department  of  fire  and  buildings), 
and  also  that  "any  person,  after  being  notified  by  such  commissioner, 
who  shall  neglect  to  place  upon  any  such  building  the  fire-escapes 
lierein  provided  for,  shall  forfeit  the  sum  of  $500  and  shall  be  guilty 
of  a  misdemeanor,"  it  was  held:  "The  owner  of  the  building  in  ques- 
tion was  bound  to  provide  it  with  a  fire-escape.  He  was  not  permit- 
ted to  wait  until  he  should  be  directed  to  provide  one  by  the  com- 
missioners. He  was  bound  to  do  it  in  such  way  as  they  should  direct 
and  approve,  and  it  was  for  him  to  procure  their  direction  and  ap- 
proval." And  the  court  further  says:  "Here  was,  then,  an  absolute 
duty  imposed  upon  a  defendant  by  statute,  to  provide  a  fire-escape; 


5G  ADMINISTRATIVE   POWER  AND  ACTION.  (Part    1 

and  the  duty  was  imposed  for  the  sole  benefit  of  the  tenants  of  the 
house,  so  that  they  would  have  a  mode  of  escape  in  case  of  a  fire. 
For  the  breach  of  this  duty,  causing  damage,  it  cannot  be  doubted  that 
the  tenants  have  a  remedy."  To  the  same  effect  is  Rose  v.  King, 
supra. 

When  the  act  went  into  effect  it  was  the  duty  of  every  owner,  trus- 
tee, or  lessee  or  occupant  in  the  actual  control  of  any  building  within 
the  description  mentioned  in  the  first  section,  in  obedience  to  section 
6,  to  file  in  the  office  of  the  inspector  of  factories  a  written  application 
for  a  permit  to  erect  or  construct  fire-escapes;  and  if  these  defendants 
failed  to  do  so,  as  alleged  in  the  several  counts  of  the  declaration,  and 
injury  resulted  from  thdir  failure  to  place  the  required  fire-escapes 
in  the  building  described,  they  incurred  a  liability  to  the  person  in- 
jured, and  cannot  escape  that  liability  merely  because  they  may  not 
have  been  designated  by  the  inspector  of  factories  as  the  persons  upon 
whom  the  duty  was  imposed  to  comply  with  the  law.  In  other  words, 
the  law  imposed  upon  them  the  performance  of  the  duty,  and  the  ac- 
tion of  the  inspector  of  factories,  the  grand  jury,  the  sheriff,  and  the 
circuit  and  criminal  courts  is  only  made  necessary  in  case  they  failed 
to  do  that  duty.  It  has  been  held  that  the  term  "owner,"  in  similar 
statutes,  does  not  mean  the  owner  of  the  fee,  but  may  mean  the  lessee 
in  actual  possession  and  control  of  the  building,  but  we  are  not  aware 
that  any  court  has  held  such  laws  invalid  because  of  their  failure  to 
definitely  designate  who  should  be  liable.  We  think  it  clear  that  un- 
der this  statute  the  owner  is  primarily  liable  for  a  failure  to  perform 
the  duty.    *    *    * 

The  judgment  of  the,  superior  court  will  be  reversed,  and  the  cause 
will  be  remanded  to  that  court  for  further  proceedings  not  inconsistent 
with  the  views  here  expressed.    Reversed  and  remanded. 


SCHAEZLEIN   et   al.    v.    CABANISS,   Judge. 

(Supreme  Court  of  California,  1002.    135  Cal.  466,  67  Pac.  755,  5G  L.  R.  A. 
733,  87  Am.  St.  Hep.  122.) 

In  Bank.  Certiorari  by  Robert  Schaezlein  and  others  against  George 
H.  Cabaniss,  Judge  of  the  Police  Court  of  the  City  and  County  of  San 
Francisco,  to  review  a  judgment  of  the  latter  court  convicting  the  re- 
lator of  misdemeanor.    Judgment  reversed. 

Per  Curiam.  This  is  certiorari  to  the  police  court  of  the  city  and 
county  of  San  Francisco.  Petitioners  were  charged  with  violating 
the  provisions  of  "an  act  to  provide  for  the  proper  sanitary  condition 
of  factories,"  etc.,  approved  February  6,  1889.  That  act  declares  as 
follows :  "If  in  any  factory  or  workshop  anv  process  or  work  is  ear- 
ned on  by  which  dust,  filaments  or  injurious  gases  are  generated  or 
produced  that  are  liable  to  be  inhaled  by  the  persons  employed  therein. 


Ch.  1)        EXECUTIVE,  QUASI  JUDICIAL,  AND   QUASI   LEGISLATIVE.  57 

and  it  appears  to  the  commissioner  of  the  bureau  of  labor  statistics 
that  such  inhalation  could,  to  a  great  extent,  be  prevented  by  the  use 
of  some  mechanical  contrivance,  he  shall  direct  that  such  contrivance 
shall  be  provided,  and  within  a  reasonable  time  it  shall  be  so  provided 
and  used."  Section  6  of  the  act  makes  it  a  misdemeanor  for  any  per- 
son to  violate  any  of  the  provisions  of  the  act.    St.  1889,  p.  3. 

Petitioners  were  convicted  of  having  unlawfully  refused  and  neg- 
lected, after  notice,  to  provide  and  use  a  suction  exhauster  with  prop- 
erly attached  pipes,  hoods,  etc.,  in  a  metal  polishing  shop,  within  a 
reasonable  time  after  having  been  directed  so  to  do.  The  ultimate 
question  presented  for  consideration  under  this  writ  is  that  of  the 
constitutionality  of  the  act  above  quoted. 

That  the  Legislature  may  not  delegate  its  lawmaking  functions, 
excepting  to  such  agents  and  mandatories  as  are  recognized  by  the 
Constitution,  is,  of  course,  beyond  controversy.  Equally  we  think  be- 
yond controversy,  however,  is  the  right  of  the  state,  in  the  exercise 
of  its  police  power,  to  pass  reasonable  laws  for  the  protection  of  the 
health  of  employes  in  given  vocations,  and  to  make  the  violation  of 
those  laws  penal  offenses.  The  limit  to  which  the  state  may  go  in 
this  direction  is  not  as  yet  well  defined,  but  the  argument  that  any  such 
legislation  is  an  interference  with  the  right  of  property — the  free  right 
of  contract  between  employer  and  employe — has  been  disposed  of  and 
settled  by  the  courts  in  numerous  decisions. 

Thus  says  the  Supreme  Court  of  the  United  States  in  Holden  v. 
Hardy,  169  U.  S.  366,  18  Sup.  Ct.  383,  42  L.  Ed.  780 :  "The  Legis- 
lature has  also  recognized  the  fact,  which  experience  of  legislators 
in  many  states  has  corroborated,  that  the  proprietors  of  these  estab- 
lishments and  their  operatives  do  not  stand  upon  an  equality,  and  that 
their  interests  are,  to  a  certain  extent,  conflicting.  The  former  nat- 
urally desire  to  obtain  as  much  labor  as  possible  from  their  employes, 
while  the  latter  are  often  induced  by  the  fear  of  discharge  to  conform 
to  regulations  which  their  judgment,  fairly  exercised,  would  pronounce 
to  be  detrimental  to  their  health  or  strength.  In  other  words,  the 
proprietors  lay  down  the  rules,  and  the  laborers  are  practically  con- 
strained to  obey  them.  In  such  a  case  self-interest  is  often  an  unsafe 
guide,  and  the  Legislature  may  properly  interpose  its  authority." 

So  we  have  upon  the  statute  books  numerous  requirements  looking 
to  the  safety,  and  even  the  welfare,  of  employes  in  different  voca- 
tions. Protection  against  the  inclemency  of  the  weather  for  motor- 
men,  hand  rails  to  stairs,  inclosing  hoist  shafts,  automatic  doors  to 
elevators,  automatic  shifters  for  throwing  off  belts  and  pulleys,  fire 
escapes  on  buildings,  water  supplies  in  tenement  houses,  are  examples 
of  this  class  and  kind  of  legislation,  which  have  been  pionounced  valid 
by  the  courts. 

In  People  v.  Smith,  108  Mich.  527,  66  N.  W.  382,  32  L.  R.  A.  853, 
62  Am.  St.  Rep.  715,  it  is  well  said:  "The  trouble  with  these  cases 
arises  over  the  inability  of  the  courts  to  fix  a  rigid  rule  by  which  the 


58  ADMINISTRATIVE   POWER   AND   ACTION,  (Part    1 

validity  of  such  laws  may  be  tested.  Each  law  of  the  kind  involves 
the  questions:  (1)  Is  there  a  threatened  danger?  (2)  Does  the  regu- 
lation invade  a  constitutional  right?  (3)  Is  the  regulation  reason- 
able ?•' 

It  is  no  longer  in  dispute  that  these  laws  may  be  and  are  upheld  as 
proper  exercise  of  the  police  powers  when  they  affect,  not  the  health 
of  the  community  generally,  but  the  health  or  welfare  of  operatives  em- 
ployed in  any  given  vocation.  The  law  is  not  to  be  condemned  as 
special  legislation  because  it  does  not  affect  all  the  people,  provided  it 
affects  the  welfare  of  a  portion  of  the  community,  or  of  any  indefinite 
number  similarly  situated.  Therefore  the  power  of  the  Legislature 
by  general  law  to  provide  for  the  proper  sanitation  of  factories,  found- 
ries, mills,  and  the  like,  does  not.  call  for  discussion.  It  is  no  in- 
vasion of  the  right  of  the  employer  freely  to  contract  with  his  em- 
ploye to  provide  by  general  law  that  all  employers  shall  furnish  a  rea- 
sonably safe  place  and  reasonably  wholesome  surroundings  for  their 
employes. 

The  difficulty  with  the  present  law,  however,  is  that  it  does  not  so 
provide,  but  that  it  is  an  attempt  to  confer  upon  a  single  person  the 
right  arbitrarily  to  determine,  not  only  that  the  sanitary  condition  of 
a  workshop  or  factory  is  not  reasonably  good,  but  to  say  whether,  even 
if  reasonably  good,  in  his  judgment  its  condition  could  be  improved  by 
the  use  of  such  appliances  as  he  may  designate,  and  then  to  make  a 
penal  offense  of  the  failure  to  install  such  appliances.  "The  very  idea 
that  one  man  may  be  compelled  to  hold  his  life,  or  the  means  of  living, 
or  any  material  right  essential  to  the  enjoyment  of  life,  at  the  mere 
will  of  another,  seems  to  be  intolerable  in  any  country  where  freedom 
prevails,  as  being  the  essence  of  slavery  itself."  Yick  Wo  v.  Hopkins, 
118  U.  S.  356,  6  Sup.  Ct.  1064,  30  L.  Ed.  220. 

Under  the  law  here  in  question  it  matters  not  how  unwholesome, 
how  dangerous,  how  unsanitary  the  condition  of  any  factory  or  work- 
shop may  be,  the  proprietor  is  guilty  of  no  offense  until  the  com- 
missioner of  the  bureau  of  labor  statistics  has  required  him  to  use  ap- 
pliances which  the  commissioner  himself  shall  designate,  and  he  has 
refused  so  to  do.  Nor  does  it  matter  if  the  condition  of  such  a  work- 
shop be  reasonably  wholesome  for  the  uses  of  the  operatives,  if  "dust, 
filaments,  or  injurious  gases"  are  "liable  to  be  inhaled"  (and  it  is  here 
the  mere  liability,  and  not  the  fact,  of  the  inhalation  which  invites 
the  action  of  the  commissioner),  and  if,  in  the  opinion  of  the  com- 
missioner, such  liability  to  inhalation  could  "to  a  great  extent"  be  pre- 
vented, he  may  designate  and  prescribe  the  kind  of  appliance  which  in 
his  judgment  is  suitable  for  such  purpose,  and  it  must  be  employed. 

But  the  judgment  of  the  commissioner  is  not  only  the  determinative 
factor  in  the  proposition  as  to  whether  or  not  the  condition  of  the  fac- 
tory may  be  improved  "to  a  great  extent,"  but  under  this  law  it  is  ab- 
solutely conclusive  and  binding  upon  the  question  of  the  appliances  to 
be  used ;  and  thus  it  may  result,  as  to  three  factories  similarly  situated, 


Ch.  1)        EXECUTIVE,  QUASI  JUDICIAL,  AND   QUASI   LEGISLATIVE.  59 

which  as  to  sanitation  or  the  danger  from  inhalation  are  in  precisely 
the  same  condition,  that  the  proprietor  of  one  may  be  guilty  of  no  of- 
fense because  he  has  not  been  notified  by  the  commissioner  to  adopt 
any  appliance,  the  proprietor  of  the  second  may  be  called  upon  to  put 
into  use  some  appliance  at  a  trifling  cost,  while  the  proprietor  of  the 
third  may  have  imposed  upon  him  an  expense  for  apparatus  amounting 
to  thousands  of  dollars.  In  short,  arbitrarily,  and  within  the  declara- 
tion, not  of  the  Legislature,  but  of  the  commissioner,  no  burden  what- 
ever may  be  imposed  upon  one  institution,  while  the  other,  in  obedience 
to  this  law,  may  be  subjected  to  a  most  onerous  and  even  destructive 
expense.  The  Legislature,  as  we  have  said,  may  require  the  owners 
of  factories  and  workshops  to  put  their  buildings  in  proper  condition 
as  to  sanitation,  may  require  them  to  provide  reasonable  safeguards 
against  danger  for  the  operatives,  but  it  may  not  leave  the  question 
as  to  whether  and  how  these  things  shall  be  done  or  not  done  at  the 
arbitrary  disposition  of  any  individual. 

t3y  respondent  reliance  is  placed  on  the  case  of  Taylor  v.  Hughes, 
62  Cal.  38.  In  that  case  section  637  of  the  Penal  Code  was  under  re- 
view. It  provides  that  every  owner  of  a  dam  or  other  obstruction  in 
any  running  water  of  this  state,  who  after  being  ordered  and  notified 
by  the  fish  commissioners  to  construct  a  fish  ladder  or  to  repair  a  fish 
ladder  already  constructed  on  such  dam  or  other  obstruction,  accord- 
ing to  the  plans  of  the  fish  commissioners,  fails  to  construct  or  repair 
such  fish  ladder  within  30  days  after  such  notice,  is  guilty  of  a  mis- 
demeanor. The  application  was  for  a  writ  of  review  in  which  was  set 
forth  the  complaint,  charging  petitioner  Taylor  with  a  violation  of 
this  statute,  and  his  conviction  thereunder.  The  decision  of  this  court, 
embraced  in  a  single  sentence,  was  to  the  effect  that  the  application  did 
not  present  grounds  for  the  issuance  of  the  writ.  The  distinction, 
however,  between  that  case  and  the  case  at  bar  is  broad.  The  running 
waters  of  the  state  of  California  are  public  property.  One  who  ob- 
structs them  obstructs  them  under  license  or  permission  from  the  state, 
but  only  upon  such  conditions  as  to  their  use  as  the  state  may  impose. 
It  is  therefore  permissible  for  the  state  to  impose  such  conditions  upon 
that  use  as  it  may  see  fit,  and  in  this  case  the  requirement  was  that 
the  person  so  obstructing  the  water  should  build  an  appliance  to  per- 
mit the  free  running  of  the  fish  up  the  stream.  Here  was  no  inter- 
ference with  private  property ;  here  was  merely  a  condition  imposed 
by  the  state  upon  a  private  individual  as  to  his  use  of  property,  the  title 
to  which,  and  the  right  of  fishery  in  which,  remained  in  the  public. 

The  same  broad  distinction  exists  between  the  case  at  bar  and  that 
of  Health  Department  of  City  of  New  York  v.  Rector,  etc.,  of  Trinity 
Church,  145  N.  Y.  32,  39  N.  E.  833,  27  L.  R.  A.  710,  45  Am.  St. 
Rep.  579,  also  relied  upon  by  respondent.  In  the  latter  case,  section 
663  of  the  consolidation  act  of  the  city  of  New  York  required  all  ten- 
ement houses  to  be  supplied  with  sufficient  water  on  each  floor,  at  one 
or  more  places,  in  sufficient  quantity,  by  the  owners,  whenever  they 


60  ADMINISTRATIVE   POAVER  AND  ACTION.  (Part    1 

were  directed  so  to  do  by  the  board  of  health,  makhig  it  a  misde- 
meanor to  fail  to  comply  with  the  directions  of  the  board.  Here  the 
only  requirement  was  that  a.  sufficient  quantity  of  water  should  be 
supplied  on  each  floor  of  the  tenement  building.  To  answer  this  law, 
it  was  necessary  only  to  show  that  a  sufficient  quantity  of  water  was 
supplied  for  the  health  and  convenience  of  the  tenants.  The  direc- 
tion of  the  board  of  health,  or  its  determination  that  the  supply  was  in- 
sufficient, was  not  conclusive ;  for,  as  the  court  said  in  sustaining  the 
validity  of  the  law :  "The  citizen  cannot  under  this  act  be  punished  in 
any  way,  nor  can  any  penalty  be  recovered  from  him  for  an  alleged 
noncompliance  with  any  of  its  provisions  or  with  any  order  of  the 
board  of  health,  without  a  trial.  The  punishment  or  penalty  provided 
for  in  section  665  cannot  be  enforced  without  a  trial  under  due  process 
of  law,  and  upon  such  trial  he  has  an  opportunity  to  show  whatever 
facts  would  constitute  a  defense  to  the  charge." 

The  manifest  objection  to  this  law  is  that  upon  the  commissioner 
has  been  imposed,  not  the  duty  to  enforce  a  law  of  the  Legislature,  but 
the  power  to  make  a  law  for  the  individual,  and  to  enforce  such  rules 
of  conduct  as  he  may  prescribe.  It  is  thus  arbitrary,  special  legislation, 
and  violative  of  the  Constitution. 

For  the  foregoing  reasons,  the  police  court  is  directed  to  annul 
the  proceedings  touching  the  trial,  conviction,  and  judgment  against 
petitioner  herein. ^^ 

2  7  "The  claim  that  the  statute  commits  to  the  arbitrary  discretion  of  the 
Secretary  of  the  Treasiu'y  tlie  rtetermiuation  of  what  teas  may  be  imported, 
and  therefore  in  effect  vests  that  official  with  legislative  power,  is  without 
merit.  We  are  of  opinion  that  the  statute,  when  properly  construed,  as  said 
by  the  Circuit  Court  of  Appeals,  but  expresses  the  purpose  to  exclude  the 
lowest  grades  of  tea,  whether  demonstrably  of  inferior  purity,  or  imtit  for 
consumption,  or  presumably  so  because  of  their  inferior  quality.  This,  in  ef- 
fect, was  the  fixing  of  a  primary  standard,  and  devolved  upon  the  Secretary 
of  the  Ti-easury  the  mere  executive  duty  to  effectuate  the  legislative  policy 
declared  in  the  statute.  The  case  is  within  the  princinle  of  Marshall  Field 
&  Co.  V.  Chirk.  143  U.  S.  649;  12  Sup.  Ct.  Rep.  495,  36  L.  Ed.  294,  where 
it  was  decided  that  the  third  section  of  the  tariff  act  of  October  1,  1890  (2(i 
Stat.  567,  c.  1244),  was  not  repugnant  to  the  Constitution  as  conferring  legis- 
lative and  treaty-making  power  on  the  President,  because  it  authorized  him 
to  suspend  the  provisions  of  the  act  relating  to  the  free  introduction  of  sugar, 
molas.ses,  coffee,  tea,  and  hides.  We  may  say  of  the  legislation  in  this  case, 
as  was  said  of  the  legislation  considered  in  Marshall  Field  &  Co.  v.  Clark, 
that  it  does  not,  in  any  real  sense,  invest  administrative  officials  wit'h  the 
power  of  legislation.  Congress  legislated  on  the  subject  as  far  as  was  rea- 
sonably practicable,  and  from  the  necessities  of  the  case  was  compelled  to 
leave  to  executive  officials  the  duty  of  bringing  about  the  result  pointed  out 
by  the  statute.  To  deny  the  power  of  Congress  to  delegate  such  a  duty  would, 
in  effect,  amount  but  to  declaring  that  the  plenai-y  power  vested  in  Congress 
to  regulate  foreign  commerce  could  not  be  efficaciously  exerted."  Buttfield  v. 
Stranahan,  192  U.  S.  470,  49G,  24  Sup.  Ct.  349,  48  L.  Ed.  523  (1904). 


Ch.  2)  ADMINISTKATIVE   DISCRETION.  61 

CHAPTER  II 
ADMINISTRATIVE  DISCRETION 


SECTION  8.— CONSTRUCTION  OF  POWERS 


JACOB    (TOMLINS)  LAW  DICTIONARY,  LONDON,  1809,  v. 
DISCRETION. 

Where  anything  is  left  to  any  person  to  be  done  according  to  his 
discretion,  the  law  intends  it  must  be  done  with  a  sound  discretion  and 
according  to  law ;  and  the  Court  of  King's  Bench  hath  a  power  to  re- 
dress things  that  are  otherwise  done  notwithstanding  they  are  left  to 
the  discretion  of  those  that  do  them.     1  Lil.  Abr,  477. 

Discretion  is  to  discern  between  right  and  wrong,  and  therefore 
whoever  hath  power  to  act  at  discretion  is  bound  by  the  rule  of  reason 
and  law.    3  Inst.  56,  298. 

Aiid  though  there  be  a  latitude  of  discretion  given  to  one,  yet  he 
is  circumscribed  that  what  he  does  be  necessary  and  convenient,  with- 
out which  no  liberty  can  defend  it.    Hob.  258. 


STATE  V.  JUSTICES  OF  INFERIOR  COURT  OF  MORGAN 
COUNTY. 

(Supreme  Court  of  Georgia,  1854.     15  Ga.  408.) 

Lester  Markland  applied  to  the  inferior  court  of  Morgan  county  for 
an  order  for  a  license  to  retail  spirituous  liquors  in  that  county,  hav- 
ing paid  for  such  license,  and  being  ready  to  give  the  bond  and  se- 
curity required.  The  court  refused  to  grant  the  license,  on  the  ground 
that  the  applicant  was  an  unfit  person  to  be  so  licensed — having  been 
twice  convicted  of  selling  spirituous  liquor  to  slaves,  contrary  to  law. 

On  hearing  this  return  to  a  mandamus  nisi.  Judge  Hardeman  re- 
fused to  make  the  mandamus  absolute.  This  decision  is  assigned  as 
error. 

Starnes,  J.i  *  *  *  It  is  agreed  that  the  first  act  on  this  sub- 
ject, now  of  force  in  our  state,  was  passed  in  1791.  This  was  entitled 
"An  act  for  regulating  taverns,"  etc.  The  first  section  provided  that 
upon  the  petition  of  any  person  wishing  to  keep  a  tavern,  or  house 


1  Only  a  portion  of  tlie  opinion  is  printed. 


02  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

of  entertainment,  the  justices  of  the  inferior  court,  held  for  the  county 
of  such  person's  residence,  shall  "consider  the  convenience  of  such 
place  intended  for  a  tavern,  and  having  regard  to  the  ability  of  such 
petitioner  to  keep  good  and  sufficient  accommodations  for  travellers, 
their  horses  and  attendants,  may,  at  their  discretion,  grant  a  license," 
etc.,  provided  that  the  applicant  should  enter  into  bond,  with  sufficient 
security,  "conditioned  for  the  keeping  an  orderly  and  decent  house, 
with  good  and  sufficient  accommodation  for  travellers,"  etc.  The  sec- 
ond section  required  the  rates  of  charges  to  be  fixed  by  the  court. 
The  third  provided  a  penalty  for  retailing  without  license.  The  fourth 
fixed  the  price  to  be  paid  for  such  license;  and  the  fifth  repealed  con- 
flicting acts,  and  gave  to  the  corporations  of  Savannah  and  Augusta 
the  right  to  regulate  licenses  in  those  cities.     *     *     * 

Let  us  remark,  also,  that  the  limits  of  the  discretion,  by  this  act 
conferred  upon  the  inferior  court,  are:  (1)  A  consideration  of  the 
convenience  of  the  locality  intended  for  a  tavern.  (2)  The  ability  of 
the  petitioner  to  supply  such  tavern  with  proper  accommodation  for 
travellers,  their  horses  and  attendants.  And  that  no  discretion,  what- 
ever, is  given  the  inferior  court,  by  which  to  grant  or  refuse  the  li- 
cense, according  as  the  character  of  the  applicant  may  be  good  or  bad. 

The  only  provision  which  seems  to  have  been  contemplated,  as  a 
protection  against  the  grant  of  such  license,  to  a  person  of  bad  moral 
character,  was  the  requirement  of  bond  and  security,  for  the  keeping 
an  orderly  and  decent  house.    *    *    * 

Let  the  judgment  be  reversed.^ 


PEOPLE  ex  rel.  SHEPPARD  v.  ILLINOIS  STATE  BOARD  OF 
DENTAL  EXAMINERS. 

(Supreme  Court  of  Illinois,  1SS4.     110  III.  ISO.) 

This  is  an  original  proceeding  in  this  court  for  a  mandamus.  The 
petition  therefor  is  as  follows : 

"The  petitioner,  Isaac  N.  Sheppard,  a  citizen  of  the  state  of  Illinois, 
residing  in  the  city  of  Paris,  county  of  Edgar,  in  said  state,  complain- 
ing, shows  unto  the  court  that  he  is  twenty-one  years  of  age ;  that  he 
became  a  student  at  the  Indiana  Dental  College,  an  institution  duly 
organized  under  the  laws  of  the  state  of  Indiana,  located  at  the  city 
of  Indianapolis,  in  said  state,  on  the  3d  day  of  October,  1881,  said 
institution  being  a  college  for  the  purpose  of  educating  persons  in  the 
theory  and  practice  of  dentistry  and  dental  surgery;  that  he  attended 
said  college  as  a  student,  as  aforesaid,  during  his  two  full  terms  there- 
of, and  pursued  a  course  of  study  in  the  theory  and  practice  of  den- 
tistry and  dental  surgery  during  all  that  time  at  said  college,  and  that 
he  completed  said  course  of  study,  and  was  graduated  from  said  col- 

»  Compare  State  v.  Haulon,  24  Neb.  COS,  612,  C13,  39  N.  W.  780  (18S8). 


Ch.  2)  ADMINISTRATIVE   DISCRETION.  63 

lege  on  the  Ttli  day  of  March,  A.  D.  1883,  and  thereupon,  to  wit,  on 
the  day  last  aforesaid,  he  received  a  diploma  from  the  faculty  of  said 
Indiana  Dental  College,  duly  authenticated  by  the  signatures  of  the 
faculty  of  said  college  and  the  officers  thereof;  that  said  Indiana 
Dental  College  is  a  reputable  dental  college,  and  during  the  time  peti- 
tioner was  a  student  therein,  and  at  the  time  of  issuing  said  diploma 
by  the  faculty  of  said  dental  college  to  petitioner,  there  was  annually 
delivered  at  said  college  a  full  course  of  lectures  and  instruction  in 
dental  surgery.  Petitioner  further  shows  unto  the  court  that  desiring 
to  engage  in  the  practice  of  dentistry  in  this  state,  he  afterwards,  to 
wit,  on  or  about  the  18th  day  of  March,  1883,  presented  his  said  diplo- 
ma so  received  from  the  faculty  of  said  Indiana  Dental  College,  duly 
authenticated,  to  the  Illinois  State  Board  of  Dental  Examiners,  and 
tendered  to  said  board  a  fee  of  one  dollar,  as  provided  by  law,  and 
demanded  that  said  board  issue  to  him,  the  petitioner,  a  license  to 
practice  dentistry  in  the  state  of  Illinois,  as  provided  by  law.  Peti- 
tioner further  shows  to  the  court  that  it  was  the  duty  of  said  board 
of  dental  examiners,  upon  the  presentation  of  said  diploma,  and  the 
tender  of  the  fee  of  one  dollar,  as  aforesaid,  to  said  board  by  said  peti- 
tioner, and  the  demand,  as  aforesaid,  to  issue  to  petitioner  a  license 
to  practice  dentistry  in  the  state  of  Illinois,  and  that  the  said  board 
of  dental  examiners,  not  regarding  their  said  duty  in  this  behalf,  there- 
upon, to  wit,  on  the  day  last  aforesaid,  refused  to  issue  to  petitioner 
a  license  to  practice  dentistry  in  this  state,  and  have  continually  re- 
fused, and  still  do  refuse,  to  issue  to  petitioner  such  license.  Peti- 
tioner further  shows  unto  the  court  that  the  members  of  the  said  board 
of  dental  examiners  are  G.  V.  Black,  A.  W.  Harlan,  O.  Wilson,  J. 
J.  Jennelle  and  George  H.  Gushing,  and  that  by  the  failure  and  refusal 
of  said  board  of  dental  examiners  to  so  issue  and  grant  petitioner  a 
license  to  practice  dentistry,  as  aforesaid,  he,  the  petitioner,  has  been 
prevented  from  practicing  dentistry  in  this  state,  as  he  is  lawfully  and 
by  right  entitled  to  do ;  that  he  has  qualified  himself  for  the  prac- 
tice of  said  profession  at  great  expenditure  of  time  and  money,  and 
depends  upon  the  same  for  a  living.  Petitioner  further  shows  unto 
the  court  that  the  determination  of  the  questions  involved  in  this  pe- 
tition is  not  only  one  of  great  importance  to  him  individually,  but  is 
also  a  matter  of  public  importance,  as  numbers  of  the  graduates  of 
said  dental  college,  citizens  of  this  state,  and  circumstanced  like  peti- 
tioner, desire  to  practice  dentistry  in  this  state,  and  are  prevented 
therefrom  by  like  refusal  of  said  board  of  dental  examiners.  Where- 
fore being  without  other  legal  remedy,  petitioner  prays  for  a  writ  of 
mandamus,  directed  to  the  Illinois  State  Board  of  Dental  Examiners, 
commanding  them  to  forthwith  receive  from  petitioner  the  fee  of  one 
dollar,  and  thereupon  to  issue  to  petitioner  a  license  to  practice  den- 
tistry in  the  state  of  Illinois,  and  to  deliver  the  same  to  petitioner,  and 
that  such  further  order  may  be  made  in  the  premises  as  justice  may 
require." 


64  ADMINISTRATIVE   POWKR  AND   ACTION.  (Part    1 

The  Attorney  General  demurs  to  the  petition. 

Mr.  Justice  ScholfiKIvD  deHvered  the  opinion  of  the  court. 

It  is  provided  by  the  first  section  of  an  act  approved  May  30,  1881, 
entitled  "An  act  to  insure  the  better  education  of  practitioners  of  dental 
surgery,  and  to  regulate  the  practice  of  dentistry  in  the  state  of  Illi- 
nois," "that  it  shall  be  unlawful  for  any  person  who  is  not  at  the  time 
of  the  passage  of  this  act  engaged  in  the  practice  of  dentistry  in  this 
state,  to  commence  such  practice,  unless  such  person  shall  have  received 
a  diploma  from  the  faculty  of  some  reputable  dental  college  duly  au- 
thorized by  the  laws  of  this  state,  or  of  some  other  of  the  United 
States,  or  by  the  laws  of  some  foreign  country,  in  which  college  or 
colleges  there  was,  at  the  time  of  the  issue  of  such  diploma,  annually 
delivered  a  full  course  of  lectures  and  instruction  in  dental  surgery." 
And  in  the  sixth  section  of  the  same  act,  after  providing  for  examina- 
tion before  the  board  of  dental  examiners  of  all  applicants  for  license 
to  practice  dentistry,  is  the  following  provision :  "But  said  board  shall, 
at  all  times,  issue  a  license  to  any  regular  graduate  of  any  reputable 
dental  college,  without  examination,  upon  the  payment  by  such  grad- 
uate to  the  said  board  of  a  fee  of  one  dollar."  Other  provisions  of  the 
act  prohibit  any  person  to  practice  dentistry  without  a  license  from  the 
board,  except  such  as  are  properly  enrolled  as  having  been  practitioners 
at  the  time  of  the  passage  of  the  act. 

The  contention  of  the  relator  is  that  the  board  of  dental  examiners 
have  no  power  to  decide  what  is,  or  what  is  not,  a  "reputable  dental 
college" — that  the  law  has  itself  defined  what  is  a  "reputable  dental 
college,"  in  providing  that  it  shall  be  "duly  authorized  by  the  laws 
of  this  state,  or  some  other  of  the  United  States,  or  by  the  laws  of 
some  foreign  country,  in  which  college  *  *  *  there  was,  at  the 
time  of  the  issue  of  such  diploma,  annually  delivered  a  full  course  of 
lectures  and  instruction  in  dental  surgery."  We  are  unable  to  appre- 
ciate the  force  of  this  position.  The  word  "reputable"  would  seem 
to  be  used  here  to  express  the  meaning  ordinarily  attached  to  it.  If 
it  had  been  intended  that  a  diploma  from  any  dental  college,  or  a 
diploma  from  any  dental  college  "duly  authorized  by  the  laws  of  this 
state,  or  some  other  of  the  United  States,  or  by  the  laws  of  some  for- 
eign country,  in  which  college  *  *  *  there  was,  at  the  time  of  the 
issue  of  such  diploma,  annually  delivered  a  full  course  of  lectures 
and  instruction  in  dental  surgery,"  we  must  presume  the  language 
would  have  so  said.  By  using  the  word  "reputable,"  we  must  presume 
the  General  Assembly  meant  "reputable."  And  since  it  is  not  used 
as  being  the  equivalent  and  convertible  for  the  other  requirements 
in  regard  to  the  college,  but  as  in  addition  thereto,  we  must  presume 
it  was  intended  to  be  so  construed. 

As  a  part  of  the  current  history  of  the  times,  and  as  an  aid  in  ar- 
riving at  the  legislative  intention,  we  know  there  were  colleges  of 
different  kinds  authorized  by  the  laws  of  states  in  which  they  were 
located,  in  which  there  were  pretended  to  be  annually  delivered  full 


i 


Ch.  2)  ADMINISTRATIVE   DISCRETION.  65 

courses  of  lectures  and  instruction  upon  the  arts  and  sciences  pro- 
fessed to  be  taught,  that  were  not  "reputable,"  because  they  graduat- 
ed for  money,  frequently  without  any  reference  to  scholarship.  A 
diploma  from  such  an  institution  afforded  no  evidence  of  scholar- 
ship or  attainments  in  its  holder.  It  was  a  fraud,  and  deserved  no 
respect  from  anybody,  and  it  was  as  against  such  diplomas  the  law 
was  intended  to  protect  the  public,  and  therefore  rec[uired  that  the 
colleges  be  ''reputable."  Whether  a  college  be  reputable  or  not  is 
not  a  legal  question,  but  a  question  of  fact.  So,  also,  are  the  require- 
ments in  regard  to  the  annual  delivery  of  full  courses  of  lectures 
and  instruction.  These  questions  of  fact  are,  by  the  act,  submitted 
to  the  decision  of  the  board — not  in  so  many  words,  but  by  the  plain- 
est and  most  necessary  implication.  Their  action  is  to  be  predicated 
upon  the  existence  of  the  requisite  facts,  and  no  other  tribunal  is 
authorized  to  investigate  them,  and  of  necessity,  therefore,  they  must 
do  so.  The  act  of  ascertaining  and  determining  what  are  the  facts, 
is  in  its  nature  judicial.  It  involves  investigation,  judgment,  and  dis- 
cretion. 

The  office  of  the  writ  of  mandamus  is,  in  general,  to  compel  the 
performance  of  mere  ministerial  acts  prescribed  by  law.  It  lies, 
however,  also  to  subordinate  judicial  tribunals,  to  compel  them  to 
act  where  it  is  their  duty  to  act,  but  never  to  require  them  to  decide 
in  a  particular  manner.  It  is  not.  like  a  writ  of  error  or  appeal,  a 
remedy  for  erroneous  decisions.  Judges  of  Oneida  Common  Pleas  v. 
People,  18  Wend.  (N.  Y.)  93.  And,  as  is  said  by  the  court  in  People 
V.  Common  Council  of  Troy,  78  N.  Y.  33,  34  Am.  Rep.  500 :  "This 
principle  applies  to  every  case  where  the  duty,  performance  of  which 
is  sought  to  be  compelled,  is  in  its  nature  judicial,  or  involves  the 
exercise  of  judicial  power  or  discretion,  irrespective  of  the  general 
character  of  the  officer  or  body  to  which  the  writ  is  addressed.  A 
subordinate  body  can  be  directed  to  act,  but  not  how  to  act,  in  a 
matter  as  to  which  it  has  the  right  to  exercise  its  judgment.  The 
character  of  the  duty,  and  not  that  of  the  body  or  officers,  determines 
how  far  performance  of  the  duty  may  be  enforced  by  mandamus. 
Where  a  subordinate  body  is  vested  with  power  to  determine  a  ques- 
tion of  fact,  the  duty  is  judicial,  and  though  it  can  be  compelled  by 
mandamus  to  determine  the  fact,  it  can  not  be  directed  to  decide  it  in 
a  particular  way,  however  clearly  it  be  made  to  appear  what  the  de- 
cision ought  to  be."  See.  also,  Kelly  et  al.  v.  Citv  of  Chicago,  62 
111.  379. 

Illustrations  of  the  principle  will  be  found  in  People  v.  Common 
Council  of  Troy,  supra ;  Freeman  v.  Selectmen,  34  Conn.  406 ;  Hoole 
v.  Kinkead,  16  Nev.  217  ;  Bailey  v.  Ewart,  53  Iowa,  111,  2  N.  W. 
1009;  Berryman  v.  Perkins,  55  Cal.  483;  People  v.  Contracting 
Board,  37  N.  Y.  378,  and  other  cases  cited  in  argument  by  the  At- 
torney General. 

Fb.Adm.Law. — o 


66  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

The  denuirrer  here  does  not  admit  that  the  board  of  dental  ex- 
aminers found  that  the  college  at  which  the  relator  was  graduated 
was  reputable,  although  it  does  admit,  that  [i.  e.,  that  he  was  grad- 
uated] to  be  the  fact.  But  since  the  board  cannot  be  compelled  to 
decide  the  question  that  way,  although  the  evidence  might  clearly 
sustain  it  in  doing  so,  there  is  no  ground  for  mandamus. 

The  demurrer  must  be  sustained,  and  the  petition  dismissed. 

Demurrer  sustained.^ 


AYERS   V.   HATCH,    Mayor,   et  al. 

(Supreme  Judicial  Court  of  Massachusetts,   1900.     175  Mass.  4S9,   56  N.   E. 

612.) 

Petition  for  mandamus  by  Henry  W.  Ayers  against  Arthur  W. 
Hatch,  Mayor,  and  others,  to  compel  reinstatement  to  the  office  oi 
City  Assessor  of  the  City  of  Everett.    Dismissed. 

Morton,  j,*  *  *  *  The  remaining  question  is  whether  the 
removal  was  valid  under  the  city  charter,  which  provides  that  "any 
officer  so  appointed  [i.  e.  by  the  mayor]  may  be  removed  by  the 
mayor  for  such  cause  as  he  shall  deem  sufficient  and  shall  assign 
in  his  order  of  removal,  and  the  removal  shall  take  effect  upon  the 
filing  of  the  order  therefor  in  the  office  of  the  city  clerk  and  the 
service  of  a  copy  of  such  order  upon  the  officer  removed,  either 
personally  or  at  his  last  and  usual  place  of  abode."  St.  1892,  c.  355, 
§  29.  The  petitioner  was  appointed  by  the  mayor.  The  charter  pro- 
vides that  "the  mayor  shall  be  the  chief  executive  officer  of  the 
city,  and  the  executive  powers  of  the  city  shall  be  vested  in  him  and 
shall  be  exercised  by  him  either  personally  or  through  the  several 
officers  and  boards  in  their  respective  departments,  under  his  gen- 
eral supervision  and  control."  The  responsibility  for  the  due  and 
proper  administration  of  the  affairs  of  the  city  is  thus  placed  large- 
ly upon  him,  and,  consistently  therewith,  he  is  given  the  power  of 
removal.  The  fact,  however,  that  removals  are  to  be  for  cause,  re- 
pels the  idea  of  removal  at  pleasure,  even  though  the  sufficiency  of 
the  cause  is  for  him  to  decide. 

The  question  then  arises,  what  jurisdiction  has  this  court  in  re- 
gard to  removals  ?  The  answer,  it  seems  to  us,  is  this :  Cause  im- 
plies, we  think,  a  reasonable  ground  of  removal,  and  not  a  frivolous 
or  wholly  unsatisfactory  or  incompetent  ground  of  removal.  If  the 
cause  assigned  is  a  reasonable  one,  then,  whether,  under  the  cir- 
cumstances, it  is  sufficient  to  justify  a  removal,  is  for  the  mayor  to 

sAccord :  State  ex  rel.  Kirchgessuer  v.  Board  of  Health  of  Hudson  County, 
53  N.  J.  Law,  5M,  22  Atl.  226  (1891);  also,  as  to  "suitable"  persons  iu 
licensing  sale  of  intoxicating  liquors,  Batters  v.  Dunning,  49  Conn.  479  (1882). 
But  see,  as  to  holding  promotional  examinations,  when  practicable,  Teople 
ex  rel.  Williams  v.  Errant,  229  111.  56,  82  N.  E.  271  (1907). 

4  Portions  of  this  case  are  omitted. 


Ch.  2)  ADMINISTRATIVE   DISCRETION.  67 

decide,  and  his  decision  is  final.  But  whether  the  cause  assigned 
constitutes,  of  itself,  as  matter  of  law,  ground  for  removal,  is  a 
question  for  this  court  to  determine.  In  the  present  case  the  cause 
assigned  was  "the  good  of  the  service,"  and  manifestly,  it  seems  to 
us,  that  was  good  ground  for  removal.  The  natural  inference  would 
be  that  in  some  respect  the  petitioner  had  failed  to  perform  his 
duties,  or  was  incompetent  or  inefficient,  or  was  an  unsuitable  person 
for  the  position  to  which  he  was  appointed.  If  the  charter  provided, 
as  in  the  New  York  cases  relied  on  by  the  petitioner  (People  v.  Mayor, 
etc.,  of  New  York,  19  Hun,  441;  Same  v.  Nichols,  79  N.  Y,  582; 
Same  v.  Board  of  Fire  Com'rs  of  City  of  New  York,  12  Hun,  500), 
that  removals  should  be  "for  cause,  and  after  an  opportunity  to  be 
heard,"  no  doubt  he  would  have  been  entitled  to  a  particular  state- 
ment on  the  grounds  embraced  in  the  cause  assigned.  But  we  do 
not  see  how  it  can  be  said  that  the  cause  assigned  is  not  in  law  a 
ground  for  removal. 

The  result  is  that  we  think  that  the  petition  should  be  dismissed. 
So  ordered.^ 


HARRISON,  MAYOR,  et  al.  v.  PEOPLE  ex  rel.  RABEN. 

(Supreme  Court  of  Illinois,  1906.     222  III.  150,  78  N.  E.  52.) 

Mandamus  by  the  People,  on  relation  of  Henry  Raben,  to  compel 
\<  Carter  H.  Harrison  and  others,  as  Mayor,  City  Clerk,  and  City 
;i  Collector  of  the  City  of  Chicago,  to  issue  a  dramshop  license  to  re- 
lator. From  a  judgment  of  the  Appellate  Court,  affirming-  a  judg- 
1  ment,  awarding  the  writ,  respondents  appeal.  Reversed. 
!  The  people,  on  the  relation  of  Henry  Raben,  filed  a  petition  in 
i  the  superior  court  of  Cook  county  against  the  appellants,  as  mayor, 
j  city  clerk,  and  city  collector  of  the  city  of  Chicago,  for  a  writ  of 
,  mandamus  to  compel  them  to  issue  to  the  relator  a  license  to  keep 
1  a  dramshop  at  345  East  Division  street,  in  said  city.  The  respond- 
•  ents  answered  the  petition,  and  upon  a  hearing  the  court  awarded 
i  the  writ  as  prayed.  On  appeal  to  the  Appellate  Court  for  the  First 
\  District  that  order  was  affirmed,  and  the  respondents  now  bring  the 

case  to  this  court  by  a  further  appeal. 
I      The  case  was  heard  in  the  superior  court  upon  an  agreed  state  of 
j  facts,  as  follows : 

I  "The  only  ordinance  of  the  city  of  Chicago  regulating  the  matter 
'  of  granting  licenses  to  keep  dramshops  is  the  following: 
I  "  '1175.  The  mayor  of  the  city  of  Chicago  shall  from  time  to 
j  time  grant  licenses  for  the  keeping  of  dramshops  within  the  city  of 
'  Chicago  to  persons  who  shall  apply  to  him  in  writing  therefor  and 
■  shall  furnish  evidence  satisfying  him  of  their  good  character.     Each 

«  See,  also,  Re  Guden,  171  N.  Y.  529,  Gl  N.  E.  451  (1902). 


08  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

applicant  shall  execute  to  the  city  of  Chicago  a  bond,  with  at  least 
two  sureties  to  be  approved  by  the  city  clerk  or  city  collector,  in 
the  sum  of  $500,  conditioned  that  the  applicant  shall  faithfully  observe 
and  keep  all  ordinances  in  force  at  the  time  of  the  application  or 
thereafter  to  be  passed  during  the  period  of  the  license  applied  for, 
and  will  keep  closed  on  Sundays  all  doors  opening  out  upon  any 
street  from  the  bar  or  room  where  such  dramshop  is  to  be  kept,  and 
that  all  windows  opening  upon  any  street  from  such  bar  or  room 
shall  on  Sundays,  except  between  the  hours  of  one  o'clock  a.  m.  and 
five  o'clock  a.  m.,  be  provided  with  blinds,  shutters  or  curtains,  so  as 
to  obstruct  the  view  from  such  street  into  such  room.  Nor  shall  any 
windows  be  painted  or  covered  in  any  manner  so  as  to  obstruct  the 
view  from  such  street  into  such  room.  No  application  for  a  license 
shall  be  considered  until  such  bond  shall  have  been  filed.' 

''It  is  admitted  that  the  petitioner  made  his  application  for  a  license 
to  keep  a  dramshop  at  the  place  in  question,  and  that  in  so  doing  he 
did  everything  required  of  him  by  the  laws  or  ordinances ;  that  no 
question  was  or  is  made  of  the  sufficiency  of  the  bonds  tendered 
by  petitioner,  or  of  his  good  character;  and  that  his  application  was 
refused  solely  because  the  place  where  he  proposed  to  keep  his  dram- 
shop is  immediately  next  to  the  grounds  of  the  Lyman  Trumbull 
School,  one  of  the  public  schools  of  the  city,  the  mayor  being  of 
opinion  that  he  has  a  right  to  refuse  a  license  when,  in  his  judg- 
ment, the  place  in  which  it  is  proposed  to  keep  a  dramshop  is  one 
where  a  dramshop  will  be  a  detriment  and  an  injury  to  the  neigh- 
borhood and  offensive  to  the  best  interests  of  society.  It  is  further 
admitted  that  the  south  school  building  has  not  been  used  regularly 
in  the  past  two  years ;  that  it  has  not  been  used  but  two  or  three 
times,  though  it  is  ready  for  use ;  that  some  of  the  rooms  in  the 
north  school  building  are  not  used,  as  there  are  not  enough  scholars 
to  require  the  use  of  the  whole  building;  that  the  property  is  held 
for  school  purposes  and  intended  for  use  as  a  school,  and  that  the 
location  of  the  proposed  saloon  with  reference  to  the  school  and  the 
surroundings  is  truthfully  set  out  in  the  following  plat." 

The  plat  referred  to  is  immaterial  in  the  decision  of  the  case. 

W11.KIN,  J.  (after  stating  the  facts).  The  only  question  presented 
by  this  record  for  our  decision  is  whether,  under  the  ordinance  set 
forth  in  the  foregoing  statement  of  facts,  the  mayor  of  the  city  of 
Chicago  is  authorized  to  exercise  a  discretion  in  the  granting  of  a 
license  to  keep  a  dramshop,  or  whether,  on  the  presentation  of  an 
application  for  such  a  license  showing  that  the  requirements  of  the 
ordinance  have  been  complied  with,  he  is  compelled  to  grant  the 
license. 

It  must  be  conceded  that  the  business  of  keeping  a  saloon  or  dram- 
shop is  one  which  no  citizen  has  a  natural  or  inherent  right  to  pur- 
sue, but  is  the  subject  of  legislative  restriction,  regulation,  and 
control.      Schwuchow  v.   City   of   Chicago,   G8   111.   444.      Of  course, 


Cll.  2)  ADMINISTRATIVE   DISCRETION. 


69 


where  an  ordinance  authorizes  the  issuing  of  a  license  to  keep  a 
dramshop  upon  certain  terms  and  conditions,  the  authorities  author- 
ized to  grant  the  Hcense  cannot  arbitrarily  refuse  the  same,  nor  dis- 
criminate between  persons,  places,  and  regulations  pertaining  to  the 
business,  without  reasonable  grounds  therefor.  Zanone  v.  Mound 
City,  103  111.  552.  We  are,  however,  of  the  opinion  that  there  is 
vested  in  such  authorities,  unless  expressly  restricted  by  the  lan- 
guage of  the  ordinance,  a  discretionary  power,  which  may  be  reason- 
ably exercised  in  the  granting  or  refusing  to  issue  a  license. 

The  question  does  not  seem  to  have  been  directly  passed  upon  by 
this  court,  but  the  authorities  from  other  states  fully  sustain  this 
reasonable  construction.  In  many  of  these  cases  the  language  of 
the  law  or  ordinance  authorizing  the  granting  of  the  license  is  that, 
upon  the  doing  of  certain  things,  the  licensing  officer  or  body  shall 
grant  the  license;  but  the  decisions  are  to  the  effect  that,  neverthe- 
less, a  discretion  exists  in  such  officer  or  body,  and  that  they  will 
not  be  compelled  to  issue  a  license  when  in  their  discretion,  reasona- 
bly and  fairly  exercised,  the  license  has  been  refused.  Leigton  v. 
Maury,  76  Va.  865 ;  People  v.  Board  of  Excise,  91  Hun,  94,  36  N. 
Y.  Supp.  678 ;  Sherlock  v.  Stuart,  96  Mich.  193,  55  N.  W.  845,  21 
Iv.  R.  A.  580;  Attorney  General  v.  Justices,  27  N.  C.  315;  Muller 
V.  Commissioners,  89  N.  C.  171;  Hillsboro  v.  Smith,  110  N.  C. 
417,  14  S.  E.  972;  Perry  v.  Salt  Lake  City,  7  Utah,  143,  25  Pac. 
739,  998,  11  L.  R.  A.  446 ;   Eslinger  v.  East,  100  Ind.  434. 

This  question  was  before  the  Appellate  Court  for  the  First  Dis- 
trict in  the  case  of  Swift  v.  People,  63  111.  App.  453,  and  that  court, 
in  a  well-considered  opinion,  held  that  the  mayor  of  the  city  of  Chi- 
cago could  not  be  compelled  by  mandamus  to  issue  a  license  to  keep 
a  dramshop  in  a  neighborhood  occupied  almost  exclusively  by  resi- 
dents, and  where  a  saloon  would  be  a  nuisance. 

The  trial  court  in  this  case  held  propositions  of  law  to  the  effect 
that  the  mayor  had  the  right  to  exercise  a  discretion  in  granting 
or  refusing  the  license,  among  others  the  following:  "It  is  within 
the  mayor's  right  to  refuse  to  grant  a  license  to  keep  a  dramshop 
at  a  place  where  it  will  be  so  close  to  a  school  as  to  be  a  detriment 
and  injury  to  the  neighborhood  or  offensive  to  the  best  interests  of 
society."  Notwithstanding  this  holding,  which  we  think  a  correct 
announcement  of  the  law,  the  writ  was  granted.  The  judgment 
could  only  be  reconciled  with  the  holdings  as  to  the  law  of  the  case, 
upon  the  theory  that  the  discretionary  power  vested  in  the  mayor 
had  been  abused.  But  that  position  is  untenable.  By  the  stipula- 
tion it  is  agreed  that  the  relator  sought  a  license  to  keep  his  saloon 
immediately  next  to  the  grounds  of  the  Lyman  Trumbull  School,  one 
of  the  public  schools  of  the  city.  The  mayor  was  of  the  opinion  that 
he  had  a  right  to  refuse  a  license  when  in  his  judgment  the  place  in 
which  it  is  proposed  to  keep  a  dramshop  will  be  a  detriment  and  in- 


70  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

jury  to  the  neighborhood  and  offensive  to  the  best  interests  of  so- 
ciety. 

It  is  true  that  it  is  stipulated  that  the  school  building  has  not  been 
used  regularly  in  the  past  two  years,  though  it  is  ready  for  use, 
and  that  some  of  the  rooms  in  the  north  school  building  are  not 
used,  as  there  are  not  enough  scholars  to  require  the  use  of  the  whole 
building.  Both  school  buildings  are  on  the  same  grounds,  and  it 
is  agreed  that  the  purpose  is  to  establish  a  saloon  in  the  immediate 
vicinity  of  these  school  buildings  and  the  playgrounds.  We  appre- 
hend that  no  one  will  seriously  contend  that  a  saloon  adjacent  to  or 
in  the  immediate  neighborhood  of  public  schools  will  not  tend,  in 
a  greater  or  less  degree,  to  demoralize  and  disturb  school  children. 
We  are  clearly  of  the  opinion  that  upon  the  facts  in  this  case  there 
was  no  such  abuse  of  discretion  on  the  part  of  the  mayor  as  would 
justify  the  courts  in  compelling  him  to  grant  the  license  applied 
for. 

The  judgment  of  the  Appellate  Court  will  be  reversed,  and  the 
cause  will  be  remanded  to  the  superior  court,  with  directions  to  dismiss 
the  petition. 

Judgment  reversed.® 


SECTION  9.— CONSIDERATIONS  GUIDING  DISCRETION 


REG.   V.   BOTELER   et  al. 

(Court  of  Queen's  Bench,  18G4.     4  Best  &  S.  959.) 

Poland  obtained  a  rule  on  behalf  of  the  Board  of  Guardians  of 
the  Bridgend  and  Cowbridge  Union,  calling  upon  Robert  Boteler  and 
John  Samuel  Gibbon,  Esquires,  justices  of  the  peace  for  the  county  of 

6  Accord :  Muller  v.  Com'rs  of  Buncombe  (Jo.,  89  N.  C.  171  (1883).  See,  also, 
People  ex  rel.  Schwab  v.  Grant,  126  N.  Y.  473,  27  N.  E.  904  (1891). 

In  other  cases,  in  accordance  with  the  terms  of  the  statute,  the  issue  of 
the  liquor  license  has  been  held  to  be  a  ministerial  duty.  State  ex  rel.  Fitz- 
patrick  v.  Meyers,  80  Mo.  601  (1883);  McLeod  v.  Scott,  21  Or.  94,  26  Pac. 
1061,  29  Pac.  1  (1891) ;    Henry  v.  Barton,  107  Cal.  535,  40  Pac.  798  (1895). 

In  New  York,  the  liquor  tax  law  of  1896  (Laws  1896,  c.  112)  made  the 
right  to  sell  liquor  independent  of  any  administrative  discretion.  See  sec- 
tion 19  of  act  as  amended  in  1897  (Laws  1897,  c.  312) ;  People  ex  rel.  Belden 
Club  V.  Ililliard,  28  App.  Div.  140,  50  N.  Y.  Supp.  909  (1898). 

Discretion  as  to  renewal  of  licenses,  see  the  elaborate  opinions  in  Sharp  v. 
Wakefield  [1891]  App.  Cas.  173.  The  matter  was  subsequently  dealt  with  by 
the  English  Licensing  Act,  1904.  See  article  on  Property  in  LJcenses,  24  Law 
Quarterly  Review,  49. 

Further,  regarding  the  judicial  control  of  administrative  discretion,  see 
cases  under  mandamus. 

The  word  "may"  is  often  construed  as  "shall."  See  Mason  v.  Fearson,  9 
How.  248.  13  L.  Ed.  125  (1850) ;  Lewis'  Sutherland,  Statutory  Construction, 
§§  634-640. 


Ch.  2)  ADMINISTRATIVE   DISCRETION.  71 

Glamorgan,  and  Robert  Charles  Nicholl  Carne,  overseer  of  the  poor 
of  the  parish  of  Nash,  in  that  Union,  to  show  cause  why  the  said 
justices  should  not  issue  their  warrant  to  levy,  by  distress  and  sale 
of  the  goods  and  chattels  of  the  said  R.  C.  N.  Carne,  the  sum  of 
£14.  lis.,  the  amount  ordered  by  the  guardians  of  the  poor  of  the 
Union  to  be  paid  by  him  from  the  poor  rates  of  the  parish,  towards 
the  relief  of  the  poor  thereof,  and  as  the  contribution  of  the  parish 
to  the  common  fund  of  the  Union.     *     *     * 

Carne  having  refused  to  obey  the  order,  the  guardians  obtained 
a  summons  against  him  under  St.  3  &  3  Vict.  c.  84,  §  1.  Upon 
the  hearing  of  the  summons,  on  the  6th  October,  1863,  he  appeared  in 
person,  and,  evidence  having  been  given  in  support  of  the  application, 
Carne  contended  that  the  proof  of  notice  to  him  of  his  appointment 
as  overseer  of  the  parish  of  Nash  was  not  sufficient,  but  the  jus- 
tices decided  that  it  was.  Carne  did  not  produce  any  evidence,  but 
contended  that,  as  the  parish  of  Nash  had  not  at  that  time  any 
paupers  chargeable  to  it,  it  was  unjust  and  unreasonable  that  the 
ratepayers  thereof  should  be  called  upon  to  pay  anything  towards 
the  expenses  of  the  Union;  that  it  was  in  the  discretion  of  the  jus- 
tices whether  payment  of  the  contribution  should  or  should  not  be 
enforced ;  and  urged  upon  them  that,  as  the  order  for  contribu- 
tion was  unjust,  they  should  exercise  that  discretion  and  refuse  to 
enforce  payment.  The  justices,  addressing  Carne,  said:  "We  have 
given  the  matter  our  best  consideration  and  think  you  have  shown 
sufficient  cause  to  justify  us  in  refusing  the  warrant."  They  then, 
at  the  request  of  Carne,  added  to  their  decision  a  statement  that  they 
refused  the  warrant  in  the  exercise  of  their  discretion. 

St.  2  &  3  Vict.  c.  84,  §  1 :  "In  every  case  in  which  any  contribution 
by  overseers  or  other  officers  of  any  parish  of  monies  required  by  the 
board  of  guardians  or  persons  acting  as  guardians  for  such  parish,  or 
for  any  Union  which  shall  include  such  parish  for  the  performance  of 
their  duties,  shall  be  in  arrear,  it  shall  be  lawful  for  any  two  jus- 
tices acting  within  the  district  wherein  such  parish  shall  be  situate, 
on  application  under  the  hand  of  the  chairman  or  acting  chairman 
of  such  board,  to  summon  the  said  overseer  or  other  officers  to 
show  cause,  at  a  special  sessions  to  be  summoned  for  the  purpose, 
why  such  contribution  has  not  been  paid,  and  after  hearing  the 
complaint  preferred  under  the  authority  of  such  chairman  or  act- 
ing chairman,  and  on  behalf  of  such  board,  if  the  justices  at  such 
sessions  shall  think  fit,  by  warrant  under  their  hands  and  seals  to 
cause  the  amount  of  the  contribution  so  in  arrear,  together  with 
the  costs  occasioned  by  such  arrear,  to  be  levied  and  recovered  from 
the  said  overseers  or  other  officers,  or  any  of  them,  in  like  manner 
as  monies  assessed  for  the  relief  of  the  poor  may  be  levied  and 
recovered,  and  the  amount  of  such  arrear,  together  with  the  costs 
as  aforesaid,  when  levied  and  recovered,  to  be  paid  to  the  said  board." 


ADMIXISTHATIVE   POWER   AND   ACTION.  (Part 


J 


CocKBURN,  C.  J.^  I  do  not  intend  in  the  slightest  degree  to  en- 
croach upon  the  doctrine  that,  where  magistrates  have  a  discretion- 
ary power  to  decide  whether  they  will  do  an  act  or  not,  this  court 
will  not  order  them  to  do  it  when  they  have  exercised  their  discre- 
tion upon  the  merits  of  the  matter.  But  it  is  clear,  upon  the  facts 
of  the  present  case,  that  they  have  not  exercised  that  discretion  which 
in  law  they  would  have  been  justified  in  exercising.  This  extra- 
parochial  place,  having  been  made  part  of  a  Union,  became  liable 
by  law  to  contribute  its  share  to  the  general  expenses  of  the  Union  ; 
and  the  magistrates,  having  that  fact  established  before  them,  ought 
to  have  issued  their  warrant.  It  is  equally  clear  that  the  reason 
why  they  did  not  do  so  was  because  they  were  invited  to  exercise 
their  discretion  on  a  matter  which  was  not  within  it.  They  proceed- 
ed upon  the  ground  that  the  annexation  of  this  extra-parochial  place 
to  the  Union  was  unjust;  in  other  words,  that  the  operation  of  the 
act  of  Parliament  under  which  that  was  effected  was  unjust.  Their 
decision  virtually  amounts  to  this :  "We  know  that  upon  all  other 
grounds  we  ought  to  issue  our  warrant,  but  we  will  take  upon  our- 
selves to  say  that  the  law  is  unjust,  and  therefore,  we  will  not  issue  it." 
That  is  not  a  tenable  ground  on  which  this  court  can  allow  magis- 
trates to  decline  to  exercise  their  discretion  according  to  law.  It  would 
be  an  evil  example  if  we  held  that  they  might  thus  arbitrarily  and  ille- 
gally exercise  their  discretion;  and  therefore  this  rule  must  be  made 
absolute,  with  costs.® 


ILLINOIS  STATE  BOARD  OF  DENTAL  EXAMINERS  v. 
PEOPLE  ex   rel.   COOPER. 

(Supreme  Court  of  Illinois,  18S7.     123  111.  227,  13  N.  E.  201.) 

Appeal  from  appellate  court,  First  district ;    L.  C.  Collins,  Judge. 

Magruder,  J.  This  is  a  petition  for  mandamus,  in  which  the 
relator  prays  that  the  Illinois  state  board  of  dental  examiners  may 
be  commanded  to  issue  to  him  a  license  to  practice  dentistry  and  den- 
tal surgery  in  the  state  of  Illinois. 

The  statute  under  which  the  petition  is  filed,  and  which  defines 
the  powers  and  prescribes  the  duties  of  the  state  board  of  dental 
examiners,  is  "An  act  to  secure  the  better  education  of  practitioners 
of  dental  surgery,  and  to  regulate  the  practice  of  dentistry  in  the 
state  of  Illinois,"  approved  May  30,  1881,  in  force  July  1,  1881. 
Kurd's  Rev.  St.  1885,  c.  91,  p.  816.  The  sixth  section  of  this  act 
is  as  follows :  "Any  and  all  persons  who  shall  so  desire,  may  appear 
before  said  board  at  any  of  its  regular  meetings,  and  be  examined 

7  Part  of  this  case  is  omitted. 

8  See  Martin  v.  Symonds,  4  Misc.  Rep.  fi.  23  N.  Y.  Supp.  G89  (1893).  See, 
however,  John  Giles'  Case,  2  Str.  881  (1731);  Ex  parte  Persons,  1  Hill  (N. 
Y.)  655  (1841). 


Ch.  2)  ADMINISTRATIVE   DISCRETION.  73 

with  reference  to  their  knowledge  and  skill  in  dental  surgery;  and, 
if  the  examination  of  any  such  person  or  persons  shall  prove  satis- 
factory to  said  board,  the  board  of  examiners  shall  issue  to  such 
persons  as  they  shall  find  from  such  examination  to  possess  the 
requisite  qualifications  a  license  to  practice  dentistry  in  accordance 
with  the  provisions  of  this  act.  But  said  board  shall,  at  all  times, 
issue  a  license  to  any  regular  graduate  of  any  reputable  dental  col- 
lege without  examination,  upon  the  payment,  by  such  graduate,  to 
the  said  board,  of  a  fee  of  one  dollar.  All  licenses  issued  by  said 
board  shall  be  signed  by  the  members  thereof,  and  be  attested  by 
its  president  and  secretary;  and  such  license  shall  be  prima  facie 
evidence  of  the  right  of  the  holder  to  practice  dentistry  in  the  state 
of  Illinois."  The  first  section  of  the  act  provides  "that  it  shall  be 
unlawful  for  any  person  who  is  not  at  the  time  of  the  passage  of 
this  act  engaged  in  the  practice  of  dentistry  in  this  state,  to  com- 
mence such  practice,  unless  such  person  shall  have  received  a  diplo- 
ma from  the  faculty  of  some  reputable  dental  college  duly  author- 
ized by  the  laws  of  this  state,  or  of  some  other  of  the  United  States, 
or  by  the  laws  of  some  foreign  country,  in  which  college  or  colleges 
there  was,  at  the  time  of  the  issue  of  such  diploma,  annually  deliv- 
ered a  full  course  of  lectures  and  instruction  in  dental  surgery,"  etc. 

In  People  v.  Dental  Examiners,  110  111.  180,  we  held  that  the  act 
did  not  specifically  define  what  was  a  reputable  college,  and  that  it 
was  left  to  the  discretion  and  judgment  of  the  board  to  determine 
what  was  a  reputable  college.  In  that  case  the  mandamus  was  re- 
fused on  the  general  ground  that  the  writ  will  not  lie  to  compel  the 
performance  of  acts  or  duties  which  necessarily  call  for  the  exercise 
of  judgment  and  discretion  on  the  part  of  the  officer  or  body  at  whose 
hands  their  performance  is  required. 

But  if  a  discretionary  power  is  exercised  with  manifest  injustice, 
the  courts  are  not  precluded  from  commanding  its  due  exercise. 
They  will  interfere,  where  it  is  clearly  shown  that  the  discretion  is 
abused.  Such  abuse  of  discretion  will  be  controlled  by  mandamus. 
A  public  officer  or  inferior  tribunal  may  be  guilty  of  so  gross  an 
abuse  of  discretion,  or  such  an  evasion  of  positive  duty  as  to  amount 
to  a  virtual  refusal  to  perform  the  duty  enjoined,  or  to  act  at  all 
in  contemplation  of  law.  In  such  a  case  mandamus  will  afit'ord  a 
remedy.  Tap.  Mand.  19,  GG ;  Wood,  Mand.  6i ;  Lynah  v.  Commis- 
sioners, 2  McCord  (S.  C.)  170;  People  v.  Perry,  13  Barb.  (N.  Y.) 
206  ;   Arberry  v.  Beavers,  6  Tex.  457,  55  Am.  Dec.  791. 

In  Village  of  Glencoe  v.  People,  78  111.  382,  we  said:  "The  dis- 
cretion vested  in  the  council  cannot  be  exercised  arbitrarily,  for  the 
gratification  of  feelings  of  malevolence,  or  for  the  attainment  of 
merely  personal  and  selfish  ends.  It  must  be  exercised  for  the  pub- 
lic good,  and  should  be  controlled  by  judgment,  and  not  by  passion 
or  prejudice.  When  a  discretion  is  abused,  and  made  to  w^ork  in- 
justice, it  is  admissible  that  it  shall  be  controlled  by  mandamus." 


74  ADMIXISTHATIVB   POWER  AND   ACTION.  (Part    1 

In  the  present  case  the  demurrer  admits  all  the  allegations  of  the 
petition  to  be  true.  It  will  be  necessary  to  examine  those  allega- 
tions to  see  if  they  show  any  abuse  of  discretion  on  the  part  of  the 
board,  or  any  unjust  exercise  of  the  discretionary  power  vested  in  it. 

The  petition  alleges  that  the  relator  complied  with  the  require- 
ments of  the  statute,  and  with  the  rule  of  the  board  adopted  in  Sep- 
tember, 1884.  That  rule  is  as  follows :  "Resolved,  that  after  June, 
1885,  the  Illinois  state  board  of  dental  examiners  will  recognize  as 
reputable  only  such  dental  colleges  as  require,  as  a  requisite  for  grad- 
uation, attendance  upon  two  full,  regular  courses  of  lectures  and 
practical  instruction,  which  courses  shall  each  be  of  not  less  than  five 
months'  duration,  and  shall  be  held  in  separate  years,  with  practical 
instruction  intervening  between  the  courses.  Such  colleges  must 
also  require  a  preliminary  examination  before  admitting  students 
to  matriculation,  provided  that  no  certificate  from  a  high  or  normal 
school,  or  other  literary  institution,   is   presented  by  the  candidate." 

On  November  4,  1884,  the  relator  matriculated  as  a  student  in  the 
Chicago  College  of  Dental  Surgery,  with  which  four  of  the  five  mem- 
bers of  the  appellant  board  are  alleged  to  be  connected  as  instructors 
or  members  of  the  faculty,  and  pursued  his  studies  there  during  a 
period  of  not  less  than  five  months  in  1884  and  1885.  During  the 
summer  and  fall  of  1885  he  received  practical  instruction  in  den- 
tistry and  dental  surgery.  On  November  2,  1885,  he  matriculated  as 
a  student  in  the  Northwestern  College  of  Dental  Surgery,  which  gives 
such  lectures  and  instructions  as  are  required  by  the  above  rule,  and 
attended  therein  as  a  student  during  one  course  of  instruction  of 
not  less  than  five  months  in  the  years  1885  and  1886.  A  diploma  was 
issued  to  him  by  the  last-named  college  on  April  3,  1886.  On  May 
11,  1886,  he  presented  this  diploma  to  the  state  board  of  dental  exam- 
iners at  a  regular  meeting  thereof,  and  tendered  his  fee  of  one  dollar, 
and  demanded  a  license.     The  board  has  refused  to  issue  the  license. 

The  petition  avers  that  the  board  so  refused  to  give  him  a  license 
through  malice,  because  he  left  the  Chicago  College,  in  which  four 
members  of  the  board  are  interested,  and  graduated  at  the  North- 
western College.  It  also  avers  that  the  two  colleges  are  rivals  for 
the  patronage  of  students;  that  the  board  is  under  the  control  of 
the  Chicago  College,  and  determined  to  break  down  the  Northwest- 
ern College;  and  that  the  refusal  to  issue  the  license  springs  from  a 
determination  to  protect  their  own  college  from  competition. 

If  these  averments  are  true,  the  members  of  the  state  board  are 
abusing  their  discretion,  and  making  an  unjust  use  of  it.  They  have 
a  right  to  decide  whether  the  college  at  which  an  applicant  for  license 
has  graduated  is  reputable  or  not.  But  they  must  decide  that  ques- 
tion upon  just  and  fair  principles.  The  discretion  with  which  they  are 
vested  was  conferred  upon  them  in  the  interests  of  the  public,  and 
to  protect  the  people  from  unskillful  and  uneducated  practitioners 
of  dentistry.     If  four  of  the  five  members  which  compose  the  board 


I 


Ch.  2)  ADMINISTRATIVE   DISCRETION.  75 

are  instructors  in  a  particular  college,  and  if  they  are  making  use 
of  their  power  under  the  state  law  to  build  up  their  own  institution, 
and  crush  out  its  rival,  they  are  acting  from  motives  of  self-interest, 
and  not  in  the  interests  of  the  public.  It  cannot  be  tolerated  that  li- 
censes should  be  withheld  for  any  such  unworthy  reasons.  Inasmuch 
as  the  board  has  elected  to  stand  by  the  overruled  demurrer  to  the 
petition,  we  are  bound  to  assume  that  the  statements  of  the  petition 
are  true. 

Again,  the  relator  says  in  his  petition  that  after  his  application  on 
May  11,  1886,  he  wrote  on  May  25th  to  the  secretary  of  the  board 
and  inquired  why  a  license  was  not  issued  to  him.  On  May  26th 
the  secretary  wrote  in  reply,  returning  the  one  dollar,  and  saying: 
"The  matter  of  issuing  a  license  on  your  diploma  from  the  North- 
western College  of  Dental  Surgery  was  referred  to  the  national  as- 
sociation of  dental  examiners,  which  will  meet  in  August.  Until 
their  decision,  I  cannot  issue  any  license."  It  appears  that  the  as- 
sociation here  referred  to  is  composed,  for  the  most  part,  of  men  liv- 
ing outside  of  this  state,  and  that  its  meeting  "in  August"  was  to 
take  place  in  the  state  of  New  York. 

When  a  regular  graduate  of  a  dental  college  applies  to  the  board 
of  examiners  for  a  license,  the  only  cjuestion  for  them  to  determine 
is  whether  the  college  at  which  the  applicant  graduated  is  reputable 
or  not.  The  law  clothes  them,  and  no  other  body,  with  the  power  to 
decide  this  question.  They  cannot  delegate  their  discretionary  power 
to  an  organization  beyond  the  limits  of  the  state.  By  the  letter  of 
the  secretary  the  board  declined  to  perform  the  duty  imposed  upon 
it  by  the  Illinois  statute,  and  announced  its  intention  of  referring  the 
question  of  issuing  a  license  to  a  foreign  association. 

After  this  announcement,  upon  being  threatened  with  a  mandamus 
proceeding,  the  board,  in  an  official  communication,  signed  by  its 
secretary,  promised  the  relator's  attorney  that,  if  he  would  wait  a 
reasonable  time,  it  would  call  a  meeting,  and  would  issue  to  the  re- 
lator the  license  which  he  demanded.  The  meeting  was  held  on  June 
25,  1886,  but  the  license  was  refused.  When  the  board  promised  to 
issue  a  license,  it  must  have  been  of  the  opinion  that  the  relator  was 
entitled  to  it,  and  they  could  not  have  considered  him  entitled  to  it 
unless  they  regarded  the  college  at  which  he  had  graduated  as  rep- 
utable. 

It  is  claimed  by  counsel  for  appellee  that  the  board,  by  adopting 
the  above  rule,  has  exercised  its  discretion  in  determining  what  is  a 
reputable  dental  college;  that  any  college,  which  insists  upon  such 
requisites  for  graduation  as  the  rule  prescribes,  must  be  recognized 
by  the  board  as  a  reputable  college;  and  that  as  the  Northwestern 
College  has  brought  itself  within  the  requirements  of  the  rule,  the 
board  has  no  discretion  about  admitting  its  graduates.  On  the  other 
hand,  counsel  for  appellant  insists  that  while  no  colleges  which  fail 
to  comply  with  the  rule  will  be  regarded  as  reputable,  yet  the  board 


76  ADMixisTiJATivK  rowiut  AND  ACTION.  (Part  1 

would  have  a  right  to  demand  other  requisites  than  those  specified 
in  the  rule  before  deciding  a  college  to  be  reputable. 

We  are  not  prepared  to  hold  that  a  dental  college  which  requires 
a  preliminary  examination  before  admitting  students  to  matriculation, 
and  which  requires  students  before  graduation  to  attend  upon  two 
full  regular  courses  of  lectures  and  practical  instructions,  each  to 
be  of  not  less  than  five  months'  duration,  and  to  be  held  in  separate 
years,  with  practical  instructions  intervening  between  the  courses, 
may  not  in  other  respects  lack  some  of  the  elements  which  make  such 
an  institution  reputable.  "Reputable,"  according  to  Webster's  defini- 
tion, means  "worthy  of  repute  or  distinction  ;"  "held  in  esteem;"  "hon- 
orable ;"  "praiseworthy."  A  college  might  have  examinations  and  lec- 
tures and  instructions  of  such  an  inferior  character,  and  under  the 
direction  of  such  inferior  instructors,  that  it  would  be  unworthy  of 
praise  and  undeserving  of  esteem. 

But  the  petition  in  this  case  alleges  that  the  Northwestern  College 
has  been  recognized  by  the  board  of  examiners  as  a  reputable  dental 
college,  and  was  so  recognized  when  the  relator  presented  his  diploma. 

As  the  board  did  not  refuse  to  grant  the  license  on  the  ground 
that  the  Northwestern  College  was  not  reputable,  but  refused  such 
license  on  other  grounds,  as  stated  in  the  petition,  it  will  be  presumed 
that  the  members  regarded  that  college  as  reputable.  They  had  no 
discretion  as  to  any  other  matter  than  the  character  of  the  college 
issuing  the  diploma,  as  to  its  being  reputable  or  not  reputable.  When 
that  matter  was  decided  and  out  of  the  way,  their  judicial  or  discre- 
tionary power  w-as  exhausted.  The  duty  to  issue  the  license  was 
then  a  mere  ministerial  one,  and  its  performance  could  be  enforced 
by  mandamus. 

We  think  that  the  allegations  of  the  petition,  considered  as  a  whole, 
warranted  the  issuance  of  the  writ  of  mandamus. 

The  judgment  of  the  appellate  court  is  affirmed.' 


DODD  et  al.  v.  FRANCISCO  et  al. 
(Supreme  Court  of  New  Jersey,  1902.     GS  N.  J.  Law,  490,  53  Atl.  219.) 

Certiorari  to  review  proceedings  of  state  board  of  health  in  reversing 
action  of  local  authorities,  and  granting  permission  to  locate  a  ceme- 
tery in  the  town  of  Bloomfield. 

Dixon,  ].^^  *  *  *  There  remains  only  the  fourth  reason  as- 
signed for  reversal — that  the  board  based  its  conclusion  on  sanitary 
grounds  alone. 

If  this  reason  were  supported  by  proper  proof  we  would  be  inclined 
to  deem  it  fatal  to  the  resolution  under  review.     While  the  statute, 

•Accord:     State  ex  rel.  Johnston  v.  Lutz,  13G  Mo.  G33,  38  S.  W.  323  (1890). 
10  Only  part  of  the  opinion  is  printed.     For  other  part,  see  post,  p.  200. 


I 


Ch.  2)  ADMIXISTKATIVE   DISCRETION.  77 

1)\-  requiring  the  concurrence  of  the  municipal  council  and  the  local 
board  of  health  in  the  first  instance,  seems  fairly  to  imply  a  division  of 
function  between  them,  so  that  the  board  of  health  may  pass  upon  sani- 
tary questions  only,  and  the  municipal  council  upon  the  other  ques- 
tions pertinent  to  the  matter  in  hand,  it  seems  likewise,  by  confiding  to 
the  state  board  of  health  the  power  of  affirming  or  reversing  the  action 
of  either  or  both  of  these  local  bodies,  to  imply  that  all  pertinent  ques- 
tions are  open  for  consideration  by  the  state  board. 

But  we  think  the  reason  is  not  properly  supported.  What  appears 
is  that  one  or  perhaps  more  than  one  member  thought  that  only  sanitary 
considerations  should  have  weight;  but  it  is  at  least  doubtful  whether 
the  board,  then  composed  of  eight  members,  adopted  this  view.  As  al- 
ready stated,  every  suggestion  which  anybody  desired  to  present  was 
entertained  by  the  board,  and  we  think  the  board  is  entitled  to  the  pre- 
sumption that  every  suggestion  had  its  due  influence.  That  pre- 
sumption should  stand  until  the  board  itself  certifies  to  the  contrary, 
or  until,  a  rule  to  obtain  a  certificate  from  the  board  proving  ineft'ec- 
tual,  clear  proof  to  the  contrary  is  produced  aliunde.  See  Newark  v. 
North  Jersey  Street  Railway  Co.,  G8  N.  J.  Law,  486,  53  Atl.  219. 

We  find  no  error,  and  the  resolution  of  May  22,  1902,  is  affirmed, 
with  costs. ^^ 


In  re  SPARROW. 

(Supreme  Court  of  Peuusylvauia,  1890.    138  Pa.  IIG.  20  Atl.  711.) 

Paxson,  C.  J.  This  was  a  writ  of  alternative  mandamus  directed 
to  Hon.  S.  S.  Mehard,  president  judge  of  the  court  of  quarter  sessions 
of  Mercer  county,  requiring  him  to  show  cause  why  he  should  not 
grant  a  license  to  sell  liquor  at  retail  to  George  L.  Sparrow,  the  peti- 
tioner. To  the  alternative  writ,  the  learned  judge  makes  a  very  full 
return,  setting  forth,  inter  alia : 

(a)  "That  the  said  applicant  is  a  citizen  of  the  United  States,  and 
of  this  commonwealth,  of  temperate  habits,  and  of  good  moral  char- 
acter." 

(b)  "That  the  National  Hotel,  for  which  said  license  was  prayed, 
was  then  and  still  is  a  good  hotel,  and  necessary  for  the  accommodation 
of  the  public  and  the  entertainment  of  strangers  and  travelers." 

(c)  "That  the  borough  of  Greenville,  where  the  said  hotel  is  located, 
has  a  population  of  nearly  4,000  persons,  and  there  was  then  and  is 
now  no  licensed  house  in  said  borough,  or  wdthin  12  miles  of  it." 

(d)  "That  remonstrances  were  filed  agamst  said  application  wherein 
it  was  alleged  that  said  license  was  not  a  matter  of  public  necessity; 

11  Statutory  appeal  from  act  iuvolvins  exercise  of  discretion,  see  Ilopson'^ 
Appeal,  G5  Conn.  140  (1894),  post,  p.  525;  also,  Reiser  v.  Lines,  'u  Ind.  431 
(1877)  ;  Miller  v.  Wade,  58  lud.  91  (1877)  ;  Tliompson  v.  Kocb,  98  Ky.  400,  33 
S.  W.  9G  (1895),  post,  p.  523. 


78  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

that  said  license  was  not  necessary  for  the  accommodation  of  the  pub- 
lic, and  the  entertainment  of  strangers  and  travelers ;  and  that  the 
granting  of  said  license  would  be  detrimental  to  the  public  good,  and 
an  injury  instead  of  a  benefit  to  that  community." 

(e)  "That  these  remonstrances  were  signed  by  870  citizens  of  said 
borough  of  Greenville,  of  whom  217  were  males,  and  G53  were  females, 
and  all  of  whom  were  above  the  age  of  21  years." 

(f)  "That  additional  petitions,  asking  that  said  license  be  granted. 
were  likewise  filed,  wherein  it  was  alleged  that  such  license  was  neces- 
sary for  the  accommodation  of  the  public,  and  the  entertainment  of 
strangers  and  travelers;  and  that  the  applicant  was  a  fit  person  to 
whom  to  grant  such  license.  That  said  additional  petitions  were  signed 
by  592  citizens  of  said  borough,  of  whom  471  were  males  and  121  fe- 
males, all  of  whom  were  above  the  age  of  21  years." 

(g)  "That  thereupon  your  respondent,  representing  the  court  of 
quarter  sessions  of  the  peace,  in  and  for  the  county  of  Mercer,  having 
due  regard  to  the  number  and  character  of  the  petitioners  for  and 
against  said  application,  considered  that  the  clear  preponderance  was 
in  favor  of  the  remonstrants  and  against  the  petitioners ;  and  there- 
fore, determining  that  the  license  prayed  for  was  not  necessary  for  the 
accommodation  of  the  public  and  entertainment  of  strangers  or  travel- 
ers, refused  to  grant  the  same." 

(h)  "The  respondent  respectfully  states  that  he  is  of  opinion  that, 
notwithstanding  all  the  facts  favorable  to  complainant's  application 
above  set  forth,  the  preponderance  of  the  remonstrants  against,  over 
the  petitioners  for,  said  license,  was  of  itself  a  sufficient  ground  for 
concluding  that  the  same  was  not  a  matter  of  public  necessity,  and 
therefore  a  just  and  lawful  ground  for  refusing  to  grant  it;  and  that 
this  opinion  is  based  upon  our  acts  of  assembly  as  interpreted  by  your 
honorable  court." 

It  would  have  been  sufficient  for  the  learned  judge  below  to  have  re- 
turned that  he  had  considered  the  petitions  and  the  remonstrances, 
and  that,  in  the  exercise  of  his  discretion,  he  had  refused  the  license. 
His  return  is  very  full,  however,  and  he  has  placed  upon  the  record 
all  the  facts  bearing  upon  this  application.  It  presents  a  case  differ- 
ing in  many  respects  from  any  we  have  had  before  us,  and  we  may 
assume  that  he  made  such  return  in  order  to  enable  us  to  apply  the 
law  to  the  peculiar  facts  of  the  case. 

We  have  decided  repeatedly,  in  language  too  plain  to  be  misunder- 
stood, that  the  granting  of  a  license  to  sell  liquor  by  retail  rests  in  the 
sound  discretion  of  the  court  below.  In  Reed's  Appeal,  114  Pa.  452,  6 
Atl.  910,  we  said:  "The  action  of  the  court  in  granting  the  license 
complained  of  is  something  that  we  cannot  review,  that  being  a  matter 
of  discretion,  though  we  are  satisfied  that  there  was  a  misapprehension 
of  the  act  of  22d  March,  1867."  In  the  late  case  of  In  re  Rauden- 
busch,  120  Pa.  328,  14  Atl.  148,  in  alluding-  to  this  discretion,  we  said : 
"It  has  been  exercised  by  that  court   [quarter  sessions]    time  out  of 


Cll.  2)  ADMINISTRATIVE   DISCRETION.  79 

mind,  and  the  power  has  again  and  again  been  affirmed  by  this  court. 
This  discretion,  however,  is  a  legal  discretion,  to  be  exercised  wisely, 
and  not  arbitrarily.  A  judge  who  refuses  all  applications  for  license, 
unless  for  cause  shown,  errs  as  widely  as  the  judge  who  grants  all  ap- 
plications. In  either  case,  it  is  not  the  exercise  of  judicial  discretion, 
but  of  arbitrary  power.  The  law  of  the  land  has  decided  that  licenses 
shall  be  granted  to  some  extent,  and  has  imposed  the  duty  upon  the 
court  of  ascertaining  the  instances  in  which  the  license  shall  be  granted. 
In  order  to  perform  this  duty  properly,  the  act  of  assembly  has  pro- 
vided means  by  which  the  conscience  of  the  court  may  be  informed  as 
to  the  facts.  It  may  hear  petitions,  remonstrances,  or  witnesses,  and 
we  have  no  doubt  the  court  may,  in  some  instances,  act  of  its  own 
knowledge."  In  Schlaudecker  v.  ^Marshall,  72  Pa.  200,  Mr.  Justice  Ag- 
new,  in  referring  to  the  same  subject,  said:  "Whether  any  or  all  li- 
censes should  be  granted,  is  a  legislative,  not  a  judicial,  question. 
Courts  sit  to  administer  the  law  fairly,  as  it  is  given  to  them,  and  not 
to  make  or  repeal  it.  The  law  of  the  land  has  determined  that  licenses 
shall  exist,  and  has  imposed  upon  the  court  the  duty  of  ascertaining  the 
proper  instances  in  which  the  license  shall  be  granted,  and  therefore 
has  given  it  to  the  court  to  decide  upon  each  case  as  it  arises  in  due 
course  of  law.  The  act  of  deciding  is  judicial,  and  not  arbitrary  or 
willful.  The  discretion  vested  in  the  court  is,  therefore,  a  sound  ju- 
dicial discretion;  and,  to  be  a  rightful  judgment,  it  must  be  exercised 
in  the  particular  case,  and  upon  the  facts  and  circumstances,  before  the 
court,  and  after  they  have  been  heard  and  duly  considered — in  other 
words,  to  be  exercised  upon  the  merits  of  each  case,  according  to  the 
rule  given  by  the  act  of  assembly.  To  say  that  I  will  grant  no  license 
to  any  one,  or  that  I  will  grant  it  to  every  one,  is  not  to  decide  judi- 
cially on  the  merits  of  the  case,  but  to  determine  beforehand  without  a 
hearing  or  else  to  disregard  what  has  been  heard.  It  is  to  be  deter- 
mined not  according  to  law,  but  outside  of  law,  and  it  is  not  a  legal 
judgment,  but  the  exercise  of  an  arbitrary  will." 

I  have  given  these  copious  extracts  from  the  opinions  of  this  court 
to  emphasize  the  fact  that  the  law  not  only  gives  to  the  judges  of  the 
court  of  quarter  sessions  the  discretion  of  granting  or  refusing  li- 
censes, but  also  requires  such  discretion  to  be  exercised  in  a  sound 
judicial  manner,  and  also  casts  upon  them  the  responsibility.  That  re- 
sponsibility they  cannot  evade  by  throwing  it  upon  the  remonstrants 
or  upon  this  court.  To  refuse  a  license,  because,  in  the  mind  of  the 
judge,  there  is  a  belief  that  licenses  should  not  be  granted  at  all,  as  a 
matter  of  policy,  is  to  make  law,  not  to  administer  it.  The  judge 
to  whom  an  application  is  made  may  inform  his  conscience  in  the  man- 
ner before  pointed  out.  He  may  hear  remonstrances,  and  it  is  his  duty 
to  give  them  due  weight,  but,  after  all,  the  responsibility  rests  with 
him,  and  he  must  exercise  his  own  judgment  and  discretion  in  the  light 
which  such  aids  have  furnished.  In  the  case  in  hand,  there  appears  to 
have  been  an  unusual  effort,  both  for  and  against  the  application. 


80  ADMIXISTUATIVIC   POAVEU   AND   ACTION.  (Part    1 

The  number  of  remonstrants  considerably  exceeds  that  of  the  peti- 
tioners.. This  is  all  very  well  so  far  as  it  is  addressed  to  the  discretion 
of  the  court.  The  result  is  not  conclusive  upon  him.  Otherwise,  we 
would  have  local  option  without  the  sanction  of  an  act  of  assembly,  yet 
enforced  by  the  judiciary.  In  the  case  in  hand,  the  learned  judge  has 
undoubtedly  attached  great  weight  to  the  remonstrances.  He  does  not 
appear,  however,  to  have  wholly  substituted  the  judgment  of  the  re- 
monstrants for  his  own.  The  most  that  can  be  said  is  that  they  were 
of  sufficient  weight  to  convince  him  that  the  license  was  not  a  matter 
of  public  necessity.  In  the  view  we  take  of  the  case,  this  was  not  an 
abuse  of  discretion.  We  are  not  called  upon  to  say  whether  it  was 
exercised  wisely. 
jNIandamus  refused. 


In  re  GROSS'  LICENSE. 
(Supreme  Court  of  Peuusylvania,  1S94.     IGl  Pa.  344,  29  Atl.  25.) 

Appeal  from  court  of  quarter  sessions,  Luzerne  county. 

Application  by  Herman  Gross  for  wdiolesale  liquor  license.  From  a 
decree  refusing  it,  applicant  appeals.     Affirmed. 

Dean,  J.  This  is  the  decree  from  which  is  brought  this  appeal: 
"Now,  March  1,  189i,  after  hearing,  sureties  on  the  within  bond  are 
approved,  and  the  license,  as  prayed  for,  is  refused."  Counsel  for  ap- 
pellant, to  sustain  his  appeal,  argues  that  as  there  was  no  denial  of  the 
necessity  for  the  license,  and  no  allegation  that  the  applicant  was  not  a 
fit  person,  and  as  it  appeared  from  the  decree  the  bond  and  sureties 
were  approved,  the  inference  necessarily  is  that  the  refusal  was  not 
the  exercise  of  discretion,  but  the  result  of  arbitrary  will. 

Such  inference  is  not  warranted  by  the  facts.  The  sixth  section  of 
the  act  of  June  9,  1891  (P.  L.  259),  providing  for  licenses  to  whole- 
sale dealers  in  liquors,  says :  "The  court  of  quarter  sessions  shall  hear 
petitions  from  residents  of  the  county,  in  addition  to  that  of  the  ap- 
plicant, in  favor  of  and  remonstrance  against  the  application  for  such 
license,  and  in  all  cases  shall  refuse  the  same  whenever,  in  the  opinion 
of  said  court,  having  due  regard  to  the  number  and  character  of  the 
petitioners  for  and  against  such  application,  such  license  is  not  neces- 
sary for  the  accommodation  of  the  public,  or  that  the  applicant  or  ap- 
plicants is  or  are  not  fit  persons  to  whom  such  licenses  should  be 
granted."  This  section  must  be  read  in  connection  with  the  second 
of  the  same  act,  which  directs  the  court  to  fix,  by  rule  or  standing  or- 
der, a  time  at  which  all  applications  for  and  objections  to  licenses 
shall  be  heard  by  evidence,  petition,  remonstrance,  or  counsel.  The 
two  sections  enjoin  upon  the  court  the  duty  of  hearing  and  considering. 
If  there  be  nothing  on  the  records  of  the  court  but  the  avei'ments  in 
the  petition,  these,  at  the  time  fixed,  must  be  heard  and  considered.  The 
court  may  hear  oral  testimony  or  the  arguments  of  counsel  on  either 


Ch.  2)  ADMINISTRATIVE   DISCRETION.  81 

side.  It  may,  of  its  own  knowledge  of  the  unfitness  of  the  apphcant,  or 
of  his  faihire  in  other  material  particulars  to  meet  the  requirements  of 
the  law,  refuse  the  application,  just  as  it  may,  of  its  own  knowledge, 
approve,  for  sufficiency,  or  reject,  for  insufficiency,  the  sureties  on  the 
bond.  The  exercise  of  judicial  discretion  by  the  court  is  commanded 
by  the  statute.  This  being  so,  how  far  this  court  will  g'o  in  reviewing 
the  decrees  of  the  quarter  sessions,  notwithstanding  repeated  deci- 
sions, seems  still  to  be  in  doubt.    Therefore,  we  again  say : 

1.  The  discretion  must  be  exercised  in  a  lawful  manner.  The  appli- 
cant has  a  right  to  be  heard,  and  so  have  objectors.  A  decree  without 
hearing,  or  opportunity  for  hearing,  at  a  time  fixed  by  rule  or  standing 
order,  as  the  law  directs,  would  be  manifestly  illegal  and  on  certiorari, 
would  be  set  aside. 

2.  If  the  court  has,  in  a  lawful  manner,  performed  the  duty  im- 
posed upon  it,  it  is  not  our  business  to  inquire  whether  it  has  made  a 
mistake  in  its  conclusions  of  fact.  Whether  the  same  facts  induce  in 
our  minds  the  same  belief  as  in  that  of  the  court  below,  as  to  the 
character  of  the  applicant,  or  other  material  averments,  is  wholly  im- 
material. It  is  the  discretion  of  the  court  of  quarter  sessions,  not 
ours,  that  the  law  requires. 

3.  A  decree  made  arbitrarily,  or  in  violation  of  law,  it  is  our  plain 
duty  to  set  aside.  For  example,  if  a  judge  should  refuse  a  license  be- 
cause, in  his  opinion,  the  law  authorizing  licenses  is  a  bad  law,  or  if 
he  should  grant  all  licenses  because  he  believed  the  law  wrong,  as 
tending  to  confer  a  privilege  on  a  special  few,  in  either  case  there 
would  be  no  exercise  of  judicial  discretion.  Both  would  be  the  mere 
despotic  assertion  of  arbitrary  will  by  one  in  power, — that  sort  of  law- 
lessness which  is  least  excusable,  and  excites  most  indignation. 

4.  If  the  record  shows  the  decree  was  had  after  hearing  at  a  time 
fixed  by  rule  or  standing  order,  the  presumption  is  that  the  decree  is 
judicial,  and  not  arbitrar}^;  and  this  presumption  is  not  rebutted  by 
an  argument  from  evidence  that  the  court  ought  to  have  reached  a 
different  conclusion.  In  the  case  before  us  the  record  shows  the  li- 
cense was  refused  after  hearing.  The  act  is  an  official  one,  per- 
formed by  a  public  officer  in  the  exercise  of  the  functions  of  his 
office.  The  presumption,  in  all  such  cases,  is  that  the  officer  performed 
his  duty  according  to  law.  He  is  not  bound  to  set  out  legal  reasons  for 
his  action.    He  is  only  bound  to  have  them. 

In  Re  Johnson's  Appeal,  156  Pa.  322,  26  Atl.  1066,  relied  on  by  ap- 
pellant, the  decree  showed  no  hearing,  nor  did  the  record  anywhere 
indicate  that  the  decree  was  founded  on  a  hearing,  or  that  any  oppor- 
tunity to  be  heard  had  been  afforded  the  applicant.  The  decree  was 
reversed,  and  the  case  sent  back,  that  it  might  be  heard  and  decided 
as  the  law  directs.  While,  in  these  cases,  the  justices  of  the  quarter 
sessions  do  not  always  set  out  on  the  record  the  reasons  for  their  de- 
crees, it  is  going  very  far  to  assume  from  that  fact  alone,  as  is  done  in 
Fk.Adm.Law. — 6 


82  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

the  argument  of  this  case,  that  they  are  made  without  lawful  reasons. 
We  can  comprehend  how  a  man's  conscience  may  condemn  as  wrong  a 
law  of  the  land.  But  that  sort  of  a  conscience,  so  tender  as  to  with- 
hold approval  of  a  law,  yet  which  voluntarily  takes  an  oath  to  ad- 
minister it  according  to  its  true  intent  and  meaning,  and  then  deliber- 
ately violates  it,  is  beyond  our  comprehension.  We  will  not  assume, 
without  incontrovertible  evidence,  of  record,  that  there  is  such  an  one. 
The  decree  is  affirmed,  and  the  appeal  is  dismissed,  at  cost  of  ap- 
pellant.^' 


SECTION  10.— VALIDITY  OF  UNREGULATED  DISCRETION 


WILSON  V.  EUREKA  CITY. 

(Supreme  Court  of  United  States,  1899.     173  U.  S.  32,  19  Sup.  Ct.  317,  43  L. 
Ed.  603.) 

In  error  to  the  Supreme  Court  of  the  state  of  Utah. 

Section  12  of  Ordinance  No.  10  of  Eureka  City,  Utah,  provided  as 
follows :  "No  person  shall  move  any  building  or  frame  of  any  build- 
ing, into  or  upon  any  of  the  public  streets,  lots  or  squares  of  the  city, 
or  cause  the  same  to  be  upon,  or  otherwise  to  obstruct  the  free  pas- 
sage of  the  streets,  without  the  written  permission  of  the  mayor,  or 
president  of  the  city  council,  or  in  their  absence  a  councilor.  A  vio- 
lation of  this  section  shall  on  conviction,  subject  the  offender  to  a 
fine  of  not  to  exceed  twenty-five  dollars." 

The  plaintiff  in  error  was  tried  for  a  violation  of  the  ordinance,  in 
the  justice's  court  of  the  city.  He  was  convicted  and  sentenced  to  pay 
a  fine  of  $25.  He  appealed  to  the  district  court  of  the  First  judicial 
district  of  the  territory  of  Utah. 

On  the  admission  of  Utah  into  the  Union,  the  case  was  transferred 
to  the  Fifth  district  court  of  Juab  county,  and  there  tried  on  the  24th 
of  October,  1896,  by  the  court  without  a  jury,  by  consent  of  the  par- 
ties. 

Section  12,  supra,  was  offered  and  admitted  in  evidence.  Plaintiff  in 
error  objected  to  it,  on  the  ground  that  it  was  repugnant  to  section  1 
of  article  14  of  the  Constitution  of  the  United  States,  in  that  it  dele- 
gated an  authority  to  the  mayor  of  the  city,  or,  in  his  absence,  to  a 
councilor. 

There  was  also  introduced  in  evidence  an  ordinance  establishing  fire 
limits  within  the  city,  providing  that  no  wooden  buildings  should  be 
erected  within  such  limits  except  by  the  permission  of  the  committee 

12  See,  also,  In  re  Licenses,  4  Luz.  Leg.  Reg.  (Pa.)  527  (1888).  And  see 
cases  under  mandamus,  §  53. 


1 


Ch.  2)  ADMINISTRATIVE   DISCRETION.  83 

on  building,  and  providing  further  for  the  alteration  and  repair  of 
wooden  buildings  already  erected.    *     *     * 

The  evidence  showed  that  the  plaintifif  in  error  was  the  owner  of  a 
wooden  building  of  the  dimensions  of  20  by  16  feet,  which  was  used  as 
a  dwelling  house.  It  was  constructed  prior  to  the  enactment  of  the 
ordinances  above  mentioned.  The  evidence  further  showed  that  plain- 
tiff in  error  applied  to  the  mayor  for  permission  to  move  the  building 
along  and  across  Main  street  in  the  city  to  another  place  within  the 
fire  limits.  The  mayor  refused  the  permission,  stating  that,  if  the  de- 
sire was  to  move  it  outside  of  the  fire  limits,  permission  would  be 
granted.  Notwithstanding  the  refusal,  the  plaintiff  in  error  moved 
the  building,  using  blocks  and  tackle  and  rollers,  and,  in  doing  so,  oc- 
cupied the  time  between  11  a.  m.  and  3  p.  m.  At  tlie  place  where  the 
building  stood  originally,  the  street  was  50  feet  from  the  houses  on 
one  side  to  those  on  the  other,  part  of  the  space  being  occupied  by 
sidewalks,  and  the  balance  by  the  traveled  highway.  The  distance  of 
removal  was  206  feet  along  and  across  Main  street.  Eureka  City  was 
and  is  a  mining  town,  and  had  and  has  a  population  of  about  2,000.  It 
was  admitted  that  the  building  was  moved  with  reasonable  diligence. 

The  plaintiff  in  error  was  again  convicted.  From  the  judgment  of 
conviction  he  appealed  to  the  Supreme  Court  of  the  state,  which  court 
affirmed  the  judgment  (15  Utah,  53,  48  Pac.  41;  15  Utah,  67,  48 
Pac.  150,  62  Am.  St.  Rep.  904),  and  to  the  judgment  of  affirmance 
this  writ  of  error  is  directed. 

Eureka  City  has  no  special  charter,  but  was  incorporated  under  the 
general  incorporation  act  of  March  8,  1888,  and  among  the  powers 
conferred  by  it  on  city  councils  are  the  following : 

"(10)  To  regulate  the  use  of  streets,  alleys,  avenues,  sidewalks,  cross 
walks,  parks  and  public  grounds. 

"(11)  To  prevent  and  remove  obstructions  and  encroachments  upon 
the  same." 

The  error  assigned  is  that  the  ordinance  is  repugnant  to  the  four- 
teenth amendment  of  the  Constitution  of  the  United  States,  because 
"thereby  the  citizen  is  deprived  of  his  property  without  due  process  of 
law,"  and  "the  citizen  is  thereby  denied  the  equal  protection  of  the 
law." 

Mr.  Justice  McKenna,  after  stating  the  facts  in  the  foregoing  lan- 
guage, delivered  the  opinion  of  the  court. 

Whether  the  provisions  of  the  charter  enabled  the  council  to  delegate 
any  power  to  the  mayor  is  not  within  our  competency  to  decide.  That 
is  necessarily  a  state  question,  and  we  are  confined  to  a  consideration  of 
whether  the  power  conferred  does  or  does  not  violate  the  Constitution 
of  the  United  States. 

It  is  contended  that  it  does,  because  the  ordinance  commits  the  rights 
of  plaintiff  in  error  to  the  unrestrained  discretion  of  a  single  individual, 
and  thereby,  it  is  claimed,  removes  them  from  the  domain  of  law.  To 
support  the  contention,  the  following  cases  are  cited :   In  re  Frazee,  63 


84  ADMINISTHATIVE   TOWER  AND   ACTION.  (Part    1 

Mich.  396,  30  N.  W.  72,  G  Am.  St.  Rep.  310;^-  State  v.  Dcring,  8i 
Wis.  585,  54  N.  W.  1104,  19  L.  R.  A.  858,  36  Am.  St.  Rep.  948 ;  An- 
derson V.  City  of  Wellington,  40  Kan.  173,  19  Pac.  719,  2  L.  R.  A. 
110,  10  Am.  St.  Rep.  175;  Mayor,  etc.,  v.  Radecke,  49  Md.  217,  33 
Am.  Rep.  239;  City  of  Chicago  v.  Trotter,  136  111.  430,  26  N.  E. 
359.1^ 

With  the  exception  of  Mayor,  etc.,  v.  Radecke,  these  cases  passed 
on  the  validity  of  city  ordinances  prohibiting  persons  parading  streets 
with  banners,  musical  instruments,  etc.,  without  first  obtaining  per- 
mission of  the  mayor  or  common  council  or  police  department.  Fu- 
neral and  military  processions  were  excepted,  although  in  some  respects 
they  were  subjected  to  regulation.  This  discrimination  was  made  the 
basis  of  the  decision  in  State  v,  Bering;  but  the  other  cases  seem 
to  have  proceeded  upon  the  principle  that  the  right  of  persons  to 
assemble  and  parade  was  a  well-established  and  inherent  right,  which 
could  be  regulated,  but  not  prohibited  or  made  dependent  upon  any 
officer  or  officers,  and  that  its  regulation  must  be  by  well-defined  con- 
ditions. 

This  view  has  not  been  entertained  by  other  courts,  or  has  not  been 
extended  to  other  instances  of  administration.  The  cases  were  re- 
viewed by  Mr.  Justice  McFarland,  of  the  Supreme  Court  of  California, 
in  Re  Flaherty,  105  Cal.  558,  38  Pac.  981,  27  L.  R.  A.  529,  in  which  an 
ordinance  which  prohibited  the  beating  of  drums  on  the  streets  of 
one  of  the  towns  of  that  state,  "without  special  permit  in  writing  so  to 
do  first  had  and  obtained  from  the  president  of  the  board  of  trustees," 
was  passed  on  and  sustained.  Summarizing  the  cases,  the  learned 
justice  said: 

"Statutes  and  ordinances  have  been  sustained  prohibiting  awnings 
without  the  consent  of  the  mayor  and  aldermen  (Pedrick  v.  Bailey,  12 
Gray  [Mass.]  161);  forbidding  orations,  harangues,  etc.,  in  a  park 
without  the  prior  consent  of  the  park  commissioners  (Com.  v.  Abra- 
hams, 156  Mass.  57,  30  N.  E.  79),  or  upon  the  common  or  other 
grounds,  except  by  the  permission  of  the  city  government  and  com- 
mittee (Com.  V.  Davis,  140  Mass.  485,  4  N.  E.  577);  'beating  any 
drum  or  tambourine,  or  making  any  noise  with  any  instrument  for 
any  purpose  whatever,  without  written  permission  of  the  president  of 
the  village,'  on  any  street  or  sidewalk  (Vance  v.  Hadfield,  51  Hun, 
620,  643,  4  N.  Y.  Supp.  112);  giving  the  right  to  manufacturers  and 
others  to  ring  bells  and  blow  whistles  in  such  manner  and  at  such 
hours  as  the  board  of  aldermen  or  selectmen  may  in  writing  designate 
(Sawyer  v.  Davis,  136  Mass.  239,  49  Am.  Rep.  27);  prohibiting  the 
erecting  or  repairing  of  a  wooden  building  without  the  permission 

13  See,  however,  Love  v.  .Tiidge  of  Recorder's  Court,  128  Mich.  545,  87  N. 
W.  785,  55  L.  R.  A.  618  (1901). 

1*  See,  also,  Cicero  Lumber  Co.  v.  Cicero,  176  111.  9,  51  N.  E.  75S,  42  L. 
R.  A.  696,  68  Am.  St.  Rep.  155  (1898) ;  Noel  v.  People,  187  111.  587,  58  N.  EL 
616,  52  L.  R.  A.  287,   79  Am.   St.   Rep.  238  (1900). 


♦ 


Ch.  2)  ADMINISTRATIVE  DISCRETION.  85 

of  the  board  of  aldermen  (Hine  v.  City  of  New  Haven,  40  Conn. 
478);  authorizing  harbor  masters  to  station  vessels  and  to  assign 
to  each  its  place  (Vanderbilt  v.  Adams,  7  Cow.  [N.  Y.]  349);  for- 
bidding the  occupancy  of  a  place  on  the  street  for  a  stand  without 
the  permission  of  the  clerk  of  Faneuil  Hall  Market  (In  re  Nightingale 
11  Pick.  [Mass.]  168);  forbidding  the  keeping  of  swine  without  a  per- 
mit in  writing  from  the  board  of  health  (Quincy  v.  Kennard,  151 
Mass.  563,  24  N.  E.  860) ;  forbidding  the  erection  of  any  kind  of  a 
building  without  a  permit  from  the  commissioners  of  the  town  through 
their  clerk  (Commissioners  v.  Covey,  74  Md.  262  [22  Atl.  266]);  for- 
bidding any  person  from  remaining  within  the  limits  of  the  market 
more  than  twenty  minutes  unless  permitted  so  to  do  by  the  superin- 
tendent or  his  deputy  (Com.  v.  Brooks,  109  Mass.  355)." 

In  all  of  these  cases  the  discretion  upon  which  the  right  depended 
was  not  that  of  a  single  individual.  It  was  not  in  all  of  the  cases  cited 
by  plaintiff  in  error,  nor  was  their  principle  based  on  that.  It  was 
based  on  the  necessity  of  the  regulation  of  rights  by  uniform  and  gen- 
eral laws — a  necessity  which  is  no  better  observed  by  a  discretion  in  a 
board  of  aldermen  or  council  of  a  city  than  in  a  mayor;  and  the  cases, 
therefore,  are  authority  against  the  contention  of  plaintiff  in  error. 
Besides,  it  is  opposed  by  Davis  v.  Com.,  167  U.  S.  43,  17  Sup.  Ct.  731, 
42  L.  Ed.  71. 

Davis  was  convicted  of  violating  an  ordinance  of  the  city  of  Boston 
by  making  a  public  address  on  the  "Common,"  without  obtaining  a  per- 
mit from  the  mayor.  The  conviction  was  sustained  by  the  Supreme 
Judicial  Court  of  the  commonwealth  (162  Mass.  510,  39  N.  E.  113, 
26  L.  R.  A.  712,  44  Am.  St.  Rep.  389),  and  then  brought  here  for  re- 
view. 

The  ordinance  was  objected  to,  as  that  in  the  case  at  bar  is  objected 
to,  because  it  was  "in  conflict  with  the  Constitution  of  the  United 
States  and  the  first  section  of  the  fourteenth  amendment  thereof."  The 
ordinance  was  sustained. 

It  follows  from  these  views  that  the  judgment  of  the  Supreme 
Court  of  Utah  should  be,  and  it  is,  affirmed.^ '^ 

15  See,  also,  Gundling  v.  Chicago,  176  111.  340,  52  N.  E.  44,  48  L.  R.  A.  200 
(1898)  affirmed  177  U.  S.  183,  20  Sup.  Ot.  633,  44  L.  Ed.  725  (1900) ;  Fischer 
V.  St.  Louis,  194  U.  S.  361,  24  Sup.  Ct.  673,  48  L.  Ed.  1018  (1904) ;  Freund,  Po- 
lice Power,  §§  639-G55. 

As  to  judicial  control  of  administrative  discretion  in  continental  jurispru- 
dence, see  Griinhut's  Zeitschrift  fiir  Privat-  u.  Offentliches  Recht,  vol.  IS. 
pp.  148-163 ;  Id.,  vol.  19,  pp.  327-411 ;    Lauu,  Freies  Ermessen,  1910. 


ADMINISTRATIVE  POWER  AND  ACTION.  (Part    1 

CHAPTER  III 
FORM  AND  PROOF  OF  OFFICIAL  ACTS' 


SECTION  11.— ACTION  OF  OFFICIAL  BODIES— THE  BODY 
MUST  BE  CONVENED 


PENNSYLVANIA  R.  CO.  v.  MONTGOMERY  COUNTY  PASS. 
RY.  CO. 

(Supreme  Court  of  Teunsylvania,  1895.     167  Pa.  G2,  31  Atl.  468,  27  L.  R.  A. 
766,  46  Am.  St.  Rep.  650.) 

Williams,  J."  *  *  *  But  in  this  connection  another  interesting 
question  suggests  itself.  How  is  the  assent  of  "the  local  authorities"  to 
be  obtained  in  any  given  case,  and  what  is  the  proper  evidence  that 
it  has  been  given?  The  township  books,  in  the  custody  of  the  town 
clerk,  are  the  records  of  the  township,  and  should  afford  evidence  of 
the  action  taken  by  the  supervisors  in  all  matters  of  public  importance. 
A  paper  in  the  pocket  of  a  contractor  or  of  some  officer  of  a  corpora- 
tion is  not  the  proper  evidence  of  action  by  the  township  or  the  school 
district.  The  action  needed  is  not  that  of  the  individuals  who  compose 
the  board,  but  of  the  official  body.  Thus  it  was  held  that  a  contract 
signed  by  the  members  of  the  school  board  separately  did  not  bind  the 
district.  The  best  evidence  of  their  official  action  was  their  minutes 
kept  by  the  secretary.  Wachob  v.  School  Dist.,  8  Phila.  5G8.  For  the 
same  reason  a  contract  signed  by  the  president  and  secretary  was  held 
to  be  invalid.  It  had  not  been  acted  upon  by  the  board  when  in  ses- 
sion.   School  Dist.  v.  Padden,  89  Pa.  395. 

One  supervisor  may  bind  the  township  by  an  act  that  is  ministerial  in 
its  character.  Dull  v.  Ridgway,  9  Pa.  272 ;  Pottsville  Borough  v.  Nor- 
wegian Tp.,  14  Pa.  543.  Not  so,  however,  when  the  act  is  one  that 
requires  deliberation  and  the  exercise  of  judgment.  Cooper  v.  Lam- 
peter Tp.,  8  Watts,  125;    Union  Tp.  v.  Gibboney,  94  Pa.  534;    Som- 

lAs  to  whether  official  declaratory  acts  must  be  in  writing,  see  Hoke  v. 
Field,  10  Bush  (Ky.)  144,  19  Am.  Rep.  58  (1873) ;  People  v.  Murray,  70  N. 
Y.  521  (1877) ;    Wigmore,  on  Evidence,  §  2427. 

As  to  requirement  of  personal  action  of  officer,  see  Chapman  v.  Inhabitants 
of  Limerick,  56  Me.  390  (1868) ;  Wilcox  v.  M'Connel,  13  Pet.  498.  512,  10  L. 
Ed.  2(M  (1839)  ;  Runkle  v.  U.  S.,  122  U.  S.  543,  7  Sup.  Ct.  1141,  30  L.  Ed.  1167 
(1887). 

As  to  place  of  action,  see  Lynde  v.  Winnel)ago  Co.,  16  Wall.  6,  21  L.  Ed. 
272  (1872). 

2  Only  a  part  of  the  opinion  of  Williams,  J.,  Is  printed. 


Ch.  3)  FORM  AND  PROOF  OF  OFFICIAL  ACTS.  87 

erset  Tp.  v.  Parson,  105  Pa.  360.  In  such  cases  the  supervisors  must 
be  together,  and  their  action  must  be  taken  in  their  official  character, 
and  should  appear  upon  the  township  book  kept  by  the  town  clerk. 
If  not  so  taken,  it  does  not  bind  the  township,  and  has  no  validity 
whatever.  The  supervisors  should  consider  and  deliberate  upon  any 
application  made  to  them  for  leave  to  occupy  any  of  the  township  roads 
with  a  street  railway.  If  they  decide  to  grant  the  application  upon 
certain  terms  and  conditions,  as  to  the  manner  and  extent  of  the  occu- 
pancy permitted  and  the  extent  of  repairs  to  be  required,  these  terms 
should  appear  in  the  record  of  the  meeting,  as  well  as  the  consent ; 
and  a  contract  that  does  not  rest  on  such  official  action,  properly  taken 
by  the  proper  officers,  is  utterly  worthless.     *     *     *  s 


SECTION    12.— SAME— ACT   OF   MAJORITY   BINDS    BODY 


GRINDEEY  et  al.  v.  BARKER  et  al. 

(Coiu-t  of  Common  Pleas,  1798.     1  Bos.  &  P.  229.) 

Eyri;,  C.  J.*  The  true  question  in  this  case  lies  in  a  very  narrow 
compass.  It  is  this:  What  is  the  operation  in  law  of  a  judgment  of 
four  out  of  six  triers,  six  being  the  number  constituted  to  be  the 
triers,  and  the  six  being  assembled  to  inquire  and  try;  whether  it  is  to 
be  deemed  the  finding  and  judgment  of  the  body,  or  merely  the  finding 
and  judgment  of  the  four  individuals  who  concurred  ?  If  it  is  the  mere 
finding  of  the  four  who  concurred,  then  this  leather  is  not  found  in- 
sufficient, but  if  the  operation  of  law  on  the  finding  of  four,  who  are 
the  majority  of  the  body,  duly  assembled,  be  that  their  judgment  is  the 
judgment  of  the  whole,  and  therefore  the  judgment  of  the  triers,  then 
the  leather  must  be  taken  to  have  been  found  insufficient,  and  the  de- 
fendants are  justified.     On  the  first  argument  I  thought  this  question 

3  "Without  formal  action  by  the  [state]  board  [of  health],  directing  a 
nuisance,  or  the  cause  of  any  special  disease  or  mortality,  to  be  abated  and 
removed,  its  secretary  can  neither  siJeak  nor  act  for  it  in  ordering  the  abate- 
ment and  removal  of  the  nuisance,  and  the  disregard  of  an  order  so  given  is 
not  indictable."    Com.  v.  Yost,  197  Pa.  171.  46  Atl.  S4.o  (1900). 

See  Chicago  &  N.  W.  R.  Co.  v.  Dey,  3.5  Fed.  866.  883,  1  L.  R.  A.  744  (1888). 
"An  official  board  acts  through  its  secretary.  This  complainant  with  others 
addressed  an  official  communication  to  the  board.  He  received  an  answer  in 
the  regular  way — one  signed  by  the  secretary  as  secretary.  Equity  and  good 
faith  forbid  going  behind  such  official  notiflcation." 

So,  under  circumstances,  acquiescense  and  assent  may  be  evidenced  by  in- 
action or  conduct;  i.  e.,  informally.  Bartlett  v.  Boston,  182  Mass.  460,  65 
N.  E.  827  (1903) ;  State  v.  Rohart,  83  Minn.  257,  86  N.  W.  93,  333,  54  L.  R. 
A.   ^7    (1901). 

4  Only  a  portion  of  the  opinion  of  Eyre,  C.  J.,  is  printed. 


88  ADMINISTRATIVE   TOWER  AND   ACTION.  (Part    1 

would  turn  on  two  general  heads  of  inquiry:  First,  what  the  gen- 
eral rule  of  law  was  in  the  case  of  bodies  of  men  intrusted  with  powers 
of  this  nature ;  whether  they  must  all  concur,  or  whether  the  decision 
of  the  majority  would  bind  the  whole?  Secondly,  supposing  the  latter 
to  be  the  general  rule,  whether  that  general  rule  is  to  be  controlled  by 
the  intent  of  the  legislature  as  collected  from  the  scope  and  provisions 
of  this  act? 

With  respect  to  the  first  question,  I  think  it  is  now  pretty  well  es- 
tablished that  where  a  number  of  persons  are  intrusted  with  powers 
not  of  mere  private  confidence,  but  in  some  respects  of  a  general  na- 
ture, and  all  of  them  are  regularly  assembled,  the  majority  will  con- 
clude the  minority,  and  their  act  will  be  the  act  of  the  whole.  The 
cases  of  corporations  go  further.  There  it  is  not  necessary  that  the 
whole  number  should  meet ;  it  is  enough  if  notice  be  given ;  and  a 
majority,  or  a  lesser  number,  according  as  the  charter  may  be,  may 
meet,  and  when  they  have  met  they  become  just  as  competent  to  de- 
cide as  if  the  whole  had  met.^  With  a  view  to  this  case,  those  who 
have  met  resemble  the  six  triers  who  have  authority  to  decide :  and 
then  a  question  arises,  how  they  may  act  when  they  have  met.  The 
case  in  Atkyns  ^  shows  the  opinion  of  a  great  judge.  Lord  Hard- 
wicke,  who  was  much  conversant  with  this  subject  in  one  part  of  his 
judicial  life,  that  the  majority  of  persons  assembled  will  conclude  the 
minority,  and  an  act  done  by  them  will  be  the  act  of  the  whole  body. 
And  that  part  of  the  law  of  corporations  applies  to  this  case;  that 
with  regard  to  powers  not  merely  private,  which  are  to  be  exercised 
by  many  persons,  provided  a  sufficient  number  be  assembled,  the  act 
of  the  majority  concludes  the  minority,  and  becomes  the  act  of  the 
whole  body.  *  *  *  If  that  be  so,  the  argument  drawn  from  the 
word  "triers"  being  used  generally,  in  the  thirty-third  and  forty- 
sixth  sections,  will  not  stand  much  in  our  way;  because  the  judgment 
of  four  triers  in  this  case  is  the  judgment  of  all,  as  much  as  if  all  had 
concurred.  There  is  nothing,  then,  in  the  general  rule  of  law  to  pre- 
vent this  finding  from  being  held  good.     *     *     *  ^ 

5  On  this  point  see  Tbroop,  Public  Officers,  §  112. 

GAttorney  General  v.  Davy,  2  Atli.  212  (1741). 

7  The  discussion  of  the  second  question  is  omitted. 

"It  cannot  be  disputed  that,  wherever  a  certain  number  are  incorporated, 
a  major  part  of  them  may  do  any  corporate  act;  so  if  all  are  summoned, 
and  part  appear,  a  major  part  of  those  that  appear  may  do  a  corporate 
act,  though  nothing  be  mentioned  in  the  charter  of  the  major  part."  Lord 
Ilardwicke,  in  Attorney  General  v.  Davy,  2  Atk.  212  (1741). 

"It  is  a  well-established  rule  that,  in  order  to  constitute  a  good  corporate 
assembly  in  the  case  of  a  corporation  consisting  of  a  definite  and  an  iiidpfinite 
body,  there  must  be  present  a  majority  of  that  number  of  which  the  definite 
body  consists,  although,  it  is  not  necessary  that  there  should  be  a  nniority 
of  the  indefinite  body."    Blacket  v.  Blizard.  0  Barn.  &  C.  851,  860  (1829). 

See,  also,  Martin  v.  Lemon,  26  Conn.  192  (1S57). 

"The  rule  of  the  common  law.  which  is  now  declared  by  statute,  that 
where  an  authority  is  to  be  exercised  by  more  than  one  officer  they  must  all 
concur  in  its  exercise,  or  all  meet  and  consult  and  a  majority  agree  to  the 
act,  is  subject  to  the  necessary  qualification  that,  if  one  is  notified  to  attend 


I 


Ch.  3)  FORM  AND  PROOF  OF  OFFICIAL  ACTS.  89 


SECTION  13.— SAAIE— PRESUMPTION  THAT  ALL  AIET  OR 
WERE  NOTIFIED 


McCOY  V.  CURTICE. 

(Supreme  Court  of  Judicature  of  New  York,  1832.    9  Wend.  17,  24  Am    Dec. 

113.) 

Trover.  Defendant  justified  as  collector  under  a  warrant  signed 
by  two  trustees  of  a  school  district. 

Sutherland,  J.^  "^^  *  *  The  next  objection  was  to  the  intro- 
duction of  the  warrant,  on  the  ground  that  it  was  signed  only  by  two 
trustees.  I  am  inclined  to  think  the  objection  was  properly  overruled 
Where  power  is  delegated  to  two  or  more  individuals  for  a  mere 
private  purpose,  in  no  respect  affecting  the  public  it  is  necessary  that 
all  should  join  in  the  execution  of  it.  Thus  arbitrators  must  all  unite 
in  an  award.  But  in  matters  of  a  public  concern,  if  all  are  present, 
the  majority  can  act,  and  their  acts  will  be  the  acts  of  the  whole.  1 
Bos.  &  Pull.  236 ;  3  T.  R.  592 ;  Green  v.  Miller,  6  Johns.  41,  5  Am. 
Dec.  184.  There  can  be  no  doubt  that  a  contract  made  by  all  of  the 
trustees  and  signed  by  two  would  be  binding,  or  that  two  could  con- 
tract against  the  will  of  the  third,  if  he  was  duly  notified  or  consulted 
and  refused  to  act.  The  convenient  dispatch  of  public  business  re- 
quires that  it  should  be  so.  Ex  parte  Rogers,  7  Cow.  526,  and  cases 
there  cited. 

The  objection  here  was  simply  that  the  warrant  was  not  signed  by 
all  the  trustees.  There  is  nothing  to  show,  or  from  which  it  is  to  be 
inferred,  that  all  the  trustees  did  not  concur  and  act  in  the  previous 
proceedings,  and  assent  to  the  issuing  of  the  warrant.  In  Yates  v. 
Russell,  17  Johns.  468,  which  was  a  writ  of  error  upon  a  judgment 
entered  upon  the  report  of  referees,  in  an  action  not  referable  under 
the  statute,  the  report  was  signed  by  only  two  of  the  referees,  and  one 
of  the  errors  relied  upon  was  that  it  did  not  appear  that  all  the  ref- 
erees met  and  heard  the  parties.  It  was  held  by  Chancellor  Kent,  who 
delivered  the  opinion  in  the  Court  of  Errors,  that  it  was  to  be  presum- 
ed that  all  the  referees  met,  as  nothing  appeared  to  the  contrary ;  and 
if  they  did  not,  the  objection  should  have  been  taken  in  the  court 
below.  That  principle  seems  to  be  applicable  to  this  case  and  disposes 
of  this  point. 

Judgment  affirmed,  with  double  costs. 

and  refuses,  it  is  the  same  as  if  tie  liad  attended  and  dissented  from  tlie 
act."     Horton  v.  Garrison,  23  Bar!).  (N.  Y.)  176,  179  (1S5(J). 

See,  also,  Williams  v.  School  District,  21  Pick.  (Mass.)  75,  82,  32  Am.  Dee. 
243  (1838),  "if  there  be  a  quorum." 

See  Wilson  v.  Alabama  Gt.  Southern  R.  Co..  77  Miss.  714,  28  South.  5G7,  52 
Im  R.  a.  357,  78  Am.  St.  Rep.  543  (1900). 

8  For  first  part  of  opinion,  see  post,  p.  107. 


90  ADMINISTRATIVE   POWER  AND   ACTION.  (Part   1 

GALBRAITH  v.  LITTIECH. 
(Supreme  Court  of  Illinois,  1874.     73  111.  209.) 

IMr.  Chief  Justice  Walker  delivered  the  opinion  of  the  court. 

This  suit  was  brought  by  appellee,  as  supervisor  of  roads  in  Hen- 
derson county,  before  a  justice  of  the  peace,  to  recover  a  penalty 
from  appellant  for  obstructing  a  public  highway.  A  trial  was  had 
before  the  justice,  and  resulted  in  a  recovery  of  one  dollar  and 
costs.  An  appeal  was  prosecuted  to  the  circuit  court,  and  a  change 
of  venue  was  had  from  that  county  to  the  Mercer  circuit  court.  A 
trial  was  there  had,  resulting  as  it  did  before  the  justice  of  the  peace. 
A  motion  for  a  new  trial  was  entered,  but  overruled  by  the  court, 
and  the  case  is  appealed  to  this  court. 

All  the  grounds  urged  for  a  new  trial  are  of  the  most  technical  char- 
acter. It  is  first  insisted  that  but  two  of  the  viewers  appointed  by  the 
county  commissioners  acted  in  laying  out  the  road,  and  it  is  there- 
fore illegal.  Appellant  concedes  that,  had  all  acted,  the  concurrence 
of  the  two  would  have  answered  the  requirements  of  the  law.  Wheth- 
er all  three  joined  in  the  report,  still  we  must  presume  that  all  three 
did  act,  although  but  two  signed  the  report. 

In  the  cases  of  Nealy  v.  Brown,  1  Gilman,  10,  Ferris  v.  Ward,  4 
Oilman,  499,  and  Dumoss  v.  Francis,  15  111.  543,  it  was  held  that  on 
presenting  the  order  of  the  county  commissioners  establishing  the 
road,  it  would  be  presumed,  until  disproved,  that  all  the  antecedent 
steps  required  by  the  statute  had  been  taken.  In  this  case  the  order  es- 
tablishing the  road  was  introduced,  and  also  the  report  signed  by  two 
of  the  viewers.  It  did  not  state  that  the  other  failed  or  refused  to  act 
with  them,  and,  failing  to  state  that  fact,  we  must  presume  that  he 
was  present  and  so  acted — nor  can  the  presumption  as  to  that  fact  be 
overcome  by  parol  evidence.  We  will  presume  that  the  county  com- 
missioners heard  evidence,  that  the  other  commissioner  acted,  but  fail- 
ed to  join  in  the  report,  and  the  presumption  is  not  contradicted  by 
the  record.    This  is  a  complete  answer  to  that  objection.     *     *  .  *  » 

9  The  rest  of  the  opinion  is  omitted. 

See  "Wigmore  on  Evidence,  §  2534. 

But  see  Wilson  v.  Alabama  Great  Southern  Railroad  Company,  77  Miss.  714, 
28  South.  5G7,  52  L.  R.  A.  357,  78  Am.  St.  Rep.  543  (1900):  "The  presence 
of  all  three  members  of  the  executive  committee  of  the  state  board  of  health 
was  necessary  to  a  valid  order  on  September  15,  1897,  when  the  order  in 
question  was  made.  Laws  1894,  p.  33,  c.  38.  This  is  made  clear  as  the  legis- 
lative purpose  by  the  amendment  (Laws  1898,  p.  93,  §  2),  providing,  for  the 
first  time,  that  'the  presence  of  two  members  of  the  executive  committee' 
would  do  thereafter.  The  order  in  question  was  made  by  only  two  members; 
it  not  being  shown  that  three  were  present.  *  *  *  Had  three  been  pres- 
ent, and  two  made  the  order,  this  objection  would  have  been  obviated." 

See,  also,  1  Rev.  St.  N.  Y.  (1st  Ed.)  pt.  1,  c.  IG,  tit.  1,  §  125:  "Any  two 
commissioners  of  highways  of  any  town  may  make  any  order,  in  execution 
of  the  powers  conferred  in  this  title;  provided  it  shall  appear  in  the  order 
filed  by  them  that  all  the  commissioners  of  highways  of  the  town  met  and 


Ch.  3)  FORM  AND  TROOF  OF  OFFICIAL  ACTS.  91 


SECTION  14.— EVIDENCE  OF  OFFICIAL  ACTION— ON 
DIRECT  ATTACK 


GILBERT  V.  COLUMBIA  TURNPIKE  CO. 
(Supreme  Court  of  Judicature  of  New  York,  1.802.     3  Johns.  Cas.  107.) 

Application  by  E.  Gilbert  to  set  aside  an  inquisition  found  by  three 
commissioners  appointed  under  the  second  section  of  the  act  amending 
the  act  establishing  the  Columbia  Turnpike  Company,  passed  March 
28,  1800. 

Per  Curiam.  This  is  the  case  of  a  special  power  granted  by  stat- 
ute, and  affecting-  the  property  of  individuals,  which  ought  to  be  strict- 
ly pursued,  and  appear  to  be  pursued,  on  the  face  of  the  proceedings. 
4  Burr.  2244;  Cowp.  26;  1  Burr.  377;  7  Term  Rep.  363.  This  is 
an  established  rule,  and  it  is  important  that  it  should  be  maintained, 
especially  in  cases  which  so  materially  interfere  with  private  rights.  It 
does  not  appear  that  any  disagreement  existed  between  the  parties, 
or  that  in  consequence  of  any  disagreement  the  company  applied  to  a 
judge,  both  of  which  were  requisite,  to  authorize  the  appointment 
of  commissioners.  The  disagreement,  and  consequent  application, 
were  the  foundation  of  the  whole  proceedings,  and  without  them  the 
judge  could  have  no  jurisdiction  in  the  case.  As  they  do  not  appear, 
we  are  not  to  intend  they  existed. 

The  judge,  in  the  case  before  us,  is  required  by  the  act  to  have  no 
interest  in  the  road ;  and  it  is  also  required  that  the  commissioners 
shall  not  be  inhabitants  of  any  of  the  towns  through  which  the  road 
shall  pass.  Neither  of  these  points,  which  are  essential  to  an  impar- 
tial result,  appear  to  have  been  complied  with,  and  both  are  indispen- 
sable. 

A  notice  to  the  owners,  it  is  true,  is  alleged  to  have  been  given,  but 
it  is  not  stated  to  have  been  in  writing.  A  notice,  in  legal  proceed- 
ings, means  a  written  notice,  and  we  think  the  act  itself,  in  this  in- 
stance, contemplates  such  a  notice.  In  certain  cases,  it  directs  the  no- 
tice to  be  left  at  the  dwelling  house  of  the  party.  This  must  intend 
a  written  notice. 

On  these  grounds  without  determining  the  other  objections,  we  are 
clearly  of  opinion  that  the  inquisition  ought  to  be  set  aside. 

deliberated  on  the  subject  embraced  in  such  order,  or  were  duly  notified  to 
attend  a  meeting  of  the  commissioners  for  the  purpose  of  deliberating  there- 
on." 

See  People  v.  Williams,  36  N.  Y.  441  (18G7). 


92  '  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

HARBAUGH  et  al.  v.  MARTIN. 
(Supreme  CJourt  of  Michigan,  1874.     30  Mich.  234.) 

CooLEY,  J.^"  Certiorari  is  sued  out  in  this  case  to  reverse  the  pro- 
ceedings of  the  drain  commissioner  in  assessing  upon  the  plaintiffs  in 
error  and  others  the  expense  of  deepening  and  widening  the  Prairie 
Ronde  ditch,  in  the  township  of  Springwells.  The  proceedings  pur- 
port to  have  been  had  under  chapter  47,  p.  570,  of  the  Compiled  Laws 
of  1871,  the  fourth  section  of  which  requires  the  county  drain  com- 
missioner, upon  the  application  to  him  in  writing  of  ten  or  more  own- 
ers of  land  in  each^  township  in  or  through  which  they  ask  to  have  a 
drain  constructed,  to  institute  proceedings  for  that  purpose,  with  a 
proviso,  however,  that  "the  petition,  except  when  the  same  is  asked 
for  upon  sanitary  reasons  only,  shall  be  signed  by  a  majority  of  the 
resident  owners  of  the  lands  through  or  into  which  said  drain  is  pro- 
posed to  be  constructed."  The  petition  in  this  case  did  not  ask  ac- 
tion upon  sanitary  reasons.  It  was  signed  by  twenty-one  persons, 
who  style  themselves  "citizens  and  freeholders  of  Springwells" ;  but 
there  is  no  finding  in  the  case,  nor  even  any  recital  in  any  of  the  papers 
which  make  up  the  record  of  the  proceedings,  that  these  twenty-one 
persons  constitute  a  majority  of  the  resident  owners  of  the  lands 
through  or  into  which  the  drain  was  constructed.  A  subsequent 
paper  presented  to  the  commissioner  as  a  waiver  of  a  jury  to  assess 
damages,  etc.,  is  signed  by  nearly  all  the  same  persons,  with  some 
others,  who  are  therein  recited  to  be  "a  majority  of  the  resident  own- 
ers of  the  property  affected  by  the  said  drain";  but  this  cannot  aid 
the  petition,  for  other  property  is  usually  aff'ected  by  a  drain  besides 
that  into  or  through  which  it  extends. 

It  is  said,  however,  that  the  commissioner  in  these  cases  may  act 
upon  his  own  knowledge  of  the  facts.  If  that  be  admissible,  which  we 
do  not  decide,  the  record  must  in  some  manner  show  that  he  possessed 
the  requisite  knowledge  to  justify  his  action.  The  record  cannot  be 
aided  by  knowledge  which  the  commissioner  conceals  in  his  own 
breast;  it  must  be  complete  in  itself,  and  all  jurisdictional  facts  must 
appear  on  the  face  of  it.  In  this  case  nothing  appears  to  show  that 
the  petition  was  sufficiently  signed  until  the  commissioner  makes  return 
to  this  court.  But  assertions  in  that  cannot  cure  defects  in  his  record. 
People  V.  Highway  Commissioners,  14  Mich.  528. 

The  proceedings  must  be  quashed.^ ^ 


* 


^0  Only  a  portion  of  the  opinion  is  printed. 

11  See,  also,  McGregor  v.  Supervisors,  37  Mich.  388. 

"In  a  proceeding  to  establish  or  vacate  highways  in  this  state  the  statutes 
have  uniformly  required  that  the  petitions  should  be  signed  by  twelve  free- 
holders of  the  county,  six  of  whom  shall  reside  in  the  immediate  neighborhood 
of  the  highway  proposed  to  be  located  or  vacated  (section  7G49,  Burns'  Ann. 
St.  1908) ;  but  it  has  been  held  that  it  was  not  necessary  to  the  sufficiency 
of  the  petition  that  said  facts  be  alleged  therein  [citing  authorities].     Any- 


Gl.  3)  FORM  AND  PROOF  OF  OFFICIAL  ACTS.  93 

MEEKER  V.  VAN  RENSSELAER. 

(Supreme  Court  of  Judicature  of  New  York,  1830.     15  Wend.   397.) 

The  declaration  charged  the  defendant  with  pulhng  down  five  dwell- 
ing houses.  *  *  *  The  defendant  proved  that  the  board  of  health 
of  the  city  had  directed  the  nuisance  to  be  abated.  To  this  proof  the 
plaintiff  objected,  insisting  that  the  minutes  of  the  board  or  written 
evidence  of  their  orders  should  be  produced.  The  objection  was 
overruled,  and  parol  evidence  was  received.     *     *     * 

Savage,  C.  J.^-  *  *  '■"  It  was  objected  that  parol  evidence 
should  not  have  been  received  of  the  orders  of  the  board  of  health. 
This  objection  was  well  taken.  The  board  of  health  is  a  tribunal  cre- 
ated by  statute,  clothed  with  large  discretionary  powers ;  and,  being 
a  public  body,  its  acts  should  be  proved  by  the  highest  and  best  evi- 
dences which  the  nature  of  the  case  admits  of.  Every  proceeding  of 
a  judicial  character  must  be  in  writing.  It  is  not  to  be  presumed  that 
minutes  of  their  proceedings  are  not  kept  by  such  a  body,  and  that 
determinations  which  seriously  affect  the  property  of  individuals,  were 
not  reduced  to  writing,  but  rest  in  parol.  In  the  case  of  Van  Wormer 
V.  City  of  Albany,  15  Wend.  263,  the  minutes  of  the  proceedings  of 
the  board  were  incorporated  with  the  proceedings  of  the  corporation, 
of  which  the  board  of  health  were  members,  and  were  proved  by  a 
witness  a  member  of  both  boards.     *     =■'     * 


WHITELY  V.  PLATTE  COUNTY. 
(Supreme  Court  of  Missouri,  1880.     73  Mo.  30.) 

Norton,  J.  The  controversy  in  this  case  grows  out  of  the  action 
of  the  township  board  of  directors  of  Weston  township,  Platte  coun- 
ty, in  locating  a  new  road  over  the  land  of  plaintiff  in  said  township. 
Plaintiff  appealed  from  the  action  of  said  board  to  the  county  court 
of  said  county,  in  which  court  he  filed"  his  motion  to  set  aside  the  or- 
der establishing  said  road,  because  it  was  made  without  notice  to 
plaintiff',  and  because  the  said  board  had  no  jurisdiction  to  make  it. 
The  court  overruled  the  motion,  whereupon  the  plaintiff  appealed  to 
the  circuit  court,  and  renewed  his  motion  to  set  aside  said  order  be- 
cause the  township  board  had  acquired  no  jurisdiction  to  establish  said 
road,  and  because  the  order  establishing  it  was  made  without  notice 
to  him.     This  motion  being  overruled,  plaintiff  appeals  to  this  court. 

The  only  question  which  the  record  presents  is  whether  or  not  the 
township  board  in  the  various  steps  taken  had  acquired  jurisdiction. 
This  being  a  statutory  proceeding  in  invitum  to  appropriate  to  the  use 

thlnj;  in  Conaway  v.  Ascherman,  94  Tnd.  187,  190,  to  tlie  contrary  is  over- 
ruled."    ^tna  Life  Ins.  Co.  v.  Jones  (Ind.)  89  N.  E,  871  (1909). 
12  Only  a  portion  of  tliis  case  is  printed. 


94  ADMINISTRATIVE   POWER  AND   ACTION,  (Part    1 

of  the  public  the  land  of  plaintiff,  and  being  in  derogation  of  common 
law  and  common  right,  "the  utmost  strictness  is  required  in  order  to 
give  it  validity;  and  unless  upon  the  face  of  the  proceeding  it  af- 
firmatively appear  that  every  essential  prerequisite  of  the  statute 
conferring  the  authority  has  been  fully  complied  with,  every  step, 
from  inception  to  termination,  is  coram  non  judice."  Ells  v.  Pacific 
R.  R.,  51  Mo.  200.  The  township  board  could  only  acquire  jurisdic- 
tion to  lay  out  a  new  road  and  assess  damages  as  is  provided  in  sec- 
tions 24,  25  and  27,  p.  110,  of  the  act  of  1873,  that  being  the  act  under 
which  the  proceeding  was  had.     These  sections  are  as  follows : 

24.  "The  township  board  of  directors  may  lay  out  or  discontinue  or 
alter  any  road,  or  lay  out  any  new  road,  when  petitioned  for  by  any 
number  of  legal  voters,  who  shall  be  householders  of  said  township,  not 
less  than  twelve,  residing  within  three  miles  of  the  road  so  to  be  alter- 
ed, discontinued  or  laid  out;  said  petition  shall  set  forth  in  writing  a 
description  of  the  road  and  what  part  is  to  be  altered  or  discontinued ; 
and  if  for  a  new  road,  the  names  of  owners  of  land,  if  known,  over 
which  the  road  is  to  pass,  the  point  at  which  it  is  to  commence,  its  gen- 
eral course,  and  the  place  at  or  near  which  it  is  to  terminate." 

25.  "Whenever  any  number  of  legal  voters  determine  to  petition  the 
township  board  for  the  alteration  or  discontinuance  of  any  road,  or 
laying  out  a  new  road,  they  shall  cause  a  copy  of  their  petition  to  be 
posted  up  in  three  of  the  most  public  places  in  the  township,  at  least 
twenty  days  before  any  action  shall  be  had  in  reference  to  said  peti- 
tion." 

27.  "The  damages  sustained  in  consequence  of  the  laying  out,  open- 
ing or  altering  a  road,  when  the  parties  interested  therein  cannot 
agree,  shall  be  ascertained  and  assessed  by  the  township  board." 

It  is  clear  from  these  statutory  provisions  that  it  is  an  indispensable 
prerequisite  to  laying  out  a  new  road  that  the  petition  for  the  same 
must  be  made  by  twelve  legal  voters  and  householders  of  the  town- 
ship living  within  three  miles  of  the  proposed  road,  and  that  a  copy 
of  such  petition  must  be  posted  in  three  of  the  most  public  places  in 
the  township  at  least  twenty  days  before  any  action  can  be  taken  in 
reference  to  it.  These  facts  are  jurisdictional  and  must  afhrmatively 
appear  in  the  proceedings,  and  unless  they  do  so  appear  no  jurisdic- 
tion is  conferred,  and  none  can  be  exercised.  The  object  of  requiring 
a  copy  of  the  petition  to  be  posted  up  was  to  impart  notice  to  the  land- 
owner that  the  public  proposed  to  make  an  appropriation  of  his  prop- 
erty to  a  public  use,  and  completely  deprive  and  divest  him  of  all  con- 
trol over  the  same ;  and  in  order  that  such  notice  might  be  effectual, 
it  is  not  only  provided  that  such  copy  shall  be  posted  up  in  three  places 
in  the  township  where  the  road  is  proposed  to  be  established,  but  that 
these  places  must  be  three  of  the  most  public  places  in  the  township. 
The  record  before  us  entirely  fails  to  show  a  compliance  with  the  law 
in  these  respects,  it  only  appearing  therefrom  "that  it  was  proved  to 
the  satisfaction  of  the  board  that  notice  of  the  opening  of  said  road  had 


Ch.  3)  FORM  AND  PROOF  OF  OFFICIAL  ACTS.  95 

been  posted  in  three  places  along  the  line  of  the  road  for  twenty  days 
previous  to  this  date."  Neither  does  it  appear  from  the  face  of  the 
petition,  or  any  other  part  of  the  record,  that  the  road  was  petitioned 
for  by  twelve  legal  voters  and  householders  of  the  township  living 
within  three  miles  of  the  road.  The  persons  signing  the  petition  are 
designated  as  citizens  of  Weston  township. 

It  therefore  follows  that,  as  the  facts  necessary  to  confer  jurisdic- 
tion on  the  township  board  do  not  affirmatively  appear,  under  the  rul- 
ings of  this  court  in  the  case  of  Ells  v.  Pacific  R.  R.,  supra,  and  the 
case  of  Carpenter  v.  Grisham,  59  Mo.  247,  the  judgment  must  be  re- 
versed and  the  cause  remanded  to  be  disposed  of  in  conformity  with 
this  opinion.     All  concur. 


SECTION  15.— Same— IN  ENFORCEMENT  PROCEEDINGS. 


PEOPLE  ex  rel.  GREENWOOD  et  al.,  Highway  Com'rs,  v.  BOARD 
OF   SUPERVISORS   OF   MADISON    COUNTY. 

(Supreme  Court  of  Illinois,  1SS8.     125  111.  334,  17  N.  E.  S02.) 

Appeal  from  Appellate  Court,  Fourth  district. 

Proceeding  by  mandamus  by  Peter  Greenwood,  J.  M.  Kendall,  and 
John  T.  Brown,  Highway  Commissioners  of  the  Town  of  Wood 
River,  against  the  Board  of  Supervisors  of  Madison  County,  to  com- 
pel an  appropriation  of  one-half  of  the  cost  of  building  a  bridge  in 
the  town  of  Wood  River.     Mandamus  denied,  and   relators  appeal. 

Shope;,  J.^^  *  *  *  fi-ig  niain  controversy,  however,  arises  upon 
the  instruction  given  by  the  court  directing  a  verdict  for  the  defendant. 
As  the  case  stood  at  the  time  the  instruction  was  given,  it  was  en- 
tirely competent  for  the  court,  and  correct  practice,  to  direct  a  ver- 
dict for  the  defendant,  for  the  reason  that  there  was  not  before  the 
jury  sufficient  evidence  to  support  a  verdict  for  the  relators.  But 
back  of  this  instruction  lay  the  action  of  the  court  in  rejecting  the 
evidence  offered  by  the  relators.  If  the  offered  evidence  was  com- 
petent, and  tended  to  sustain  the  issues  on  behalf  of  the  relators,  its 
rejection  was  erroneous,   and   the  instruction   improperly   given. 

Under  the  practice  prevailing  prior  to  the  present  statute  relating 
to  mandamus,  the  alternative  writ  became  the  foundation  of  all 
subsequent  proceedings  in  the  case,  answering  the  same  purposes  as 
the  declaration  in  ordinary  actions.  This  being  so,  it  was  necessary 
that  the  alternative  writ  should  show  upon  its  face  a  clear  right  in 
the  relator  to  the  relief  demanded.  Therein  the  relator  was  required 
to  distinctly  set  forth  all  the  material   facts  on  which  he  relied,   so 

13  Parts  of  this  case  are  omitted. 


l)G  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

that  the  same  could  be  admitted  or  traversed.  Trustees  v.  People, 
13  111.  24S,  53  Am.  Dec.  488.  The  statute  referred  to  (Starr  &  C. 
Ann.  St.  189G,  p.  1584),  while  it  has  changed  the  practice,  dispensing 
with  the  issuance  of  the  alternative  writ,  and  requiring  the  defendant 
to  answer,  plead,  or  demur  to  the  petition,  has  not  modified  or  dis- 
pensed with  the  common-law  requirement  resting  upon  the  relator  to 
set  forth  and  show  a  clear  and  indubitable  right  to  the  relief  demand- 
ed. In  every  case,  to  entitle  the  relator  to  relief,  it  must  appear 
lliat  the  defendant  is  under  a  legal  obligation  to  do  and  perform  the 
act  required,  and  every  material  fact  necessary  to  show  such  legal 
duty  must  be  averred  in  the  petition.  Hall  v.  People,  57  111.  307; 
People  v.  City  of  Elgin,  66  111.  507;  People  v.  Village  of  Crotty, 
1)3   111.  180. 

The  act  in  relation  to  roads  and  bridges  under  township  organiza- 
tion, approved  May  28,  1879,  and  in  force  July  1,  1879  (Laws  1879, 
p.  257),  is  broad  and  comprehensive  in  its  terms  and  provisions, 
embracing  within  its  scope  the  establishment,  alteration,  construction, 
repair,  maintenance,  and  supervision  of  roads  and  bridges  within  or- 
ganized towns.  The  immediate  control  and  supervision  of  roads 
and  bridges  in  a  town  was  vested  in  three  commissioners  of  high- 
ways, who  were  required  to  meet  at  a  designated  time  and  place, 
and  to  organize  by  choosing  one  of  their  number  treasurer,  and  there- 
after to  fix  their  own  time  and  place  of  meeting;  and,  by  the  thir- 
teenth section  of  the  act,  the  commissioners  were  required  to  "keep 
a  correct  record  of  their  proceedings  at  all  meetings."  Although 
reference  is  here  made  to  the  particular  act  named,  in  prior  as  also 
m  subsequent  acts  similar  provisions  appear,  and  like  powers  were 
vested  in,  and  duties  imposed  upon,  these  boards  of  highway  com- 
missioners; and  they  are  now,  and  were  under  this  particular  act, 
regarded  and  held  to  be  a  quasi  corporation,  powerless  to  act  ex- 
cept together  and  as  a  body  (Commissioners  v.  Baumgarten,  41  111. 
254;  McManus  v.  McDonough,  107  111.  95),  and  of  which  action,  as 
we  have  seen  under  the  act  of  1879,  they  were  required  to  "keep 
a  correct  record."  It  seems  clear  that  the  same  rules  of  law  are  to 
be  applied  to  this  corporate  body,  in  respect  to  its  corporate  action, 
and  the  evidence  of  such  action,  as  are  applied  to  other  municipal 
corporations ;  and  that  the  record  of  its  action,  required  by  law  to  be 
made  and  kept,  becomes  the  best,  and,  if  in  existence  and  capable 
of  being  produced,  the  only  evidence  thereof. 

The  110th  section  of  the  act  of  1879  provided  under  what  circum- 
stances a  moiety  of  the  expense  of  the  construction  of  a  bridge  in 
any  town  might  be  borne  by  the  county.  To  avail  of  such  county  ajd, 
and  as  the  basis  of  any  action  to  that  end  by  the  county  authorities, 
it  must  appear  (1)  that  a  necessity  existed  for  the  construction  or 
repair  of  such  bridge;  (2)  its  construction  or  repair  must  be  an  un- 
reasonable burden  on  the  town;  (3)  the  cost  must  exceed  such  sum 
as  could  be  raised  in  one  year  by  ordinary  taxation  for  bridge  pur- 


Cll.  3)  FORM  AND  PHOOF  OF  OFFICIAL  ACTS.  97 

poses  in  the  town ;  and  (4)  that  one-half  the  necessary  funds  there- 
for had  been  provided  by  the  town.  These  facts  are  by  the  law 
made  jurisdictional ;  and,  without  their  existence  and  concurrence, 
the  county  board  was  without  power  to  appropriate  money  from  the 
county  treasury  for  the  purpose  stated.  The  determination  of  these 
jurisdictional  facts  is  by  the  act  left  to  the  commissioners  of  high- 
ways. Acting,  as  alone  they  had  the  power  to  act,  together  and  as  a 
board,  at  a  meeting  of  the  board,  they  were  to  determine  that  the 
construction  or  repair  of  a  bridge  within  their  territorial  jurisdic- 
tion was  necessary ;  that  its  construction  or  repair  would  be  an  un- 
reasonable burden  on  the  towai ;  that  the  cost  thereof  would  exceed 
the  sum  that  could  have  been  raised  in  one  year  by  ordinary  taxa- 
tion for  bridge  purposes  in  the  town ;  and  that  they,  by  means  under 
their  control,  had  provided  for  one-half  the  necessary  expense — 
of  which  determination  they  were  required  by  the  act  to  make  and 
keep  a  record.  And  this  same  section  of  the  act  (section  110)  made 
it  the  nnperative  duty  of  the  county  board,  whenever  the  commission- 
ers of  highways  of  a  town  brought  themselves  within  the  provisions 
of  the  act,  to  appropriate  out  of  the  county  treasury  one-half  the  cost 
of  the  proposed  construction  or  repair.  In  the  case  under  considera- 
tion, the  commissioners  of  highways  of  Wood  River  township  sought 
to  avail  of  the  provisions  of  the  act  referred  to ;  and,  if  the  case  made 
by  their  petition  and  proofs  was  such  as  to  bring  them  within  the 
law,  the  writ  should  have  been  awarded. 

By  the  a^'erments  of  relators'  petition  a  prima  facie  case  was  made. 
Issue  being  taken  thereon,  it  became  necessary  for  relators  to  main- 
tain, by  competent  testimony,  the  truth  of  every  material  averment ; 
taking  upon  themselves  the  same  burden  that  rests  upon  the  plaintiff 
in  an  ordinary  action  at  law  where  the  averments  of  the  declaration 
are  put  in  issue.     To  meet  this  requirement  the  relators  produced  as 
a  witness  the  town  clerk  of  Wood  River,  who  was  also  the  clerk  of 
the  commissioners  of  highways  for  the  year  1882,  who  testified  that 
the  commissioners  held  meetings  on  April  19,  August  19,  and  Sep- 
tember 2,  1882;   and,  on  his  being  asked  if  the  commissioners  of  high- 
ways of  the  town  did  not  determine  to  build  a  bridge,  an  objection 
was 'interposed  by  the  defendants,  and  sustained  by  the  court.     This 
ruling  of  the  circuit  court  was  unquestionably  correct.     As  we  have 
before  stated,  the   determination  by  the  commissioners   of  highways 
that  a  necessity  existed  for  the  construction  or   repair  of  a  bridge, 
i   as  a  basis  for  an  application  to  the  county  board  for  county  aid  un- 
;   der  the  statute,  was  an  exercise  of  a  corporate  power  vested  in  the 
1  commissioners  of  highways,  which  could  only  be  at  a  meeting  of  the 
I  commissioners,  and  be  shown  by  the  record   required  by  the  law  to 
i  be  made  and  kept.     Before  the  county  board  could  be  legally  moved 
I  in  the  matter,  or  any  legal  duty  be  cast  upon  them,  the  commissioners 
must  have  determined  that  such  necessity  existed,  and  have  preserved 
!  Fr.Adm.Law. — 7 


98  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

the  evidence  of  that  fact  in  their  record.  In  the  proceeding  then  before 
the  circuit  court,  the  corporation,  the  commissioners  of  highways,  could 
only  speak  by  their  record,  unaided  by  parol  testimony. 

The  principles  announced  seem  to  be  well  supported  by  authority. 
Where  the  law  requires  records  to  be  kept,  they  are  the  only  lawful 
evidence  of  the  action  to  which  they  refer,  and  such  record  cannot  be 
contradicted  or  supplemented  by  parol.  The  whole  policy  of  the  law 
would  be  defeated  if  they  could  rest  partly  in  writing  and  partly  in 
parol.  Stevenson  v.  Bay  City,  26  Mich.  44 ;  Hall  v.  People,  21  Mich. 
456 ;  Morrison  v.  City  of  Lawrence,  98  Mass.  219  ;  Plunneman  v.  Fire 
Dist.,  37  Vt.  40;  Mayhew  v.  District  of  Gay  Head,  13  Allen  (Mass.) 
129.  So,  where  county  commissioners  and  township  trustees  were  re- 
quired by  law  to  keep  a  true  record  of  their  proceedings,  it  was  held 
that  they  could  "only  speak  by  their  record"  when  legally  assembled. 
Commissioners  v.  Chitwood,  8  Ind.  504.  And,  where  school  districts 
are  required  by  law  to  keep  an  account  of  their  proceedings  by  a  sworn 
clerk,  such  proceedings  can  only  be  proved  by  the  record.  Offered 
parol  proof  was  rejected.  Jordan  v.  School  Dist.,  38  Me.  164.  And  in 
respect  of  the  county  court  in  counties  not  under  township  organiza- 
tion, constituting  in  such  counties  the  county  board,  having  the  man- 
agement and  control  of  the  fiscal  affairs  of  the  county,  it  was  held  that, 
in  matters  of  allowance  or  rejection  of  claims  against  the  county,  the 
records  of  the  court  are  the  only  admissible  evidence  of  their  official 
acts.    McHaney  v.  Marion  Co.,  77  111.  488. 

The  relators  read  in  evidence  the  record  of  the  commissioners  of 
highways  of  August  19,  1882,  as  follows:  "The  amount  of  taxes  was 
fixed  at  forty  (40)  cents  for  bridges,  and  twenty  (20)  cents  for  roads ; 
for  making  and  repairing  bridges,  $6,000.40 ;  for  other  purposes,  $2,- 
100.01 ;  total,  $8,100.41.  Moved  to  petition  county  for  aid  in  build- 
ing bridge  over  Wood  river.  Carried."  And  offered,  in  that  connec- 
tion, to  prove  by  their  clerk  that,  at  the  meeting  on  August  19th,  it 
was  determined  to  build  the  particular  bridge ;  that  it  was  necessary 
it  should  be  built ;  that  its  construction  would  be  an  unreasonable  bur- 
den on  the  township ;  that  a  tax  was  levied  by  the  commissioners  for 
the  purpose  of  providing  one-half  the  estimated  cost  thereof ;  that  the 
estimated  cost  was  $5,000 ;  and  that  the  memorandum  on  the  records 
was  the  result  of  the  determination  and  action  of  the  commissioners. 
The  court  sustained  an  objection  to  the  offered  testimony.  The  offered 
testimony  was  in  the  highest  sense  material ;  and,  had  it  been  embodied 
in  the  record  of  the  commissioners,  it  would  have  tended  to  establish 
every  material  averment  of  the  petition.  But  the  imperfect  record  of 
the  determination  and  action  of  the  commissioners  could  not  thus  be 
cured  and  aided  by  parol.  Considerations  of  the  gravest  character  re- 
quire us  to  hold  that,  where  the  law  has  required  a  record  to  be  kept 
of  corporate  action  by  any  of  the  agencies  of  the  state,  the  record  alone 
can  be  resorted  to  to  establish  such  action  in  all  collateral  proceedings. 


Ch.  3)  FORM  AND  PROOF  OF  OFFICIAL  ACTS.  99 

Further  offers  of  proof  were  made  by  relators  in  respect  to  the  esti- 
mate by  the  commissioners  of  the  sum  needed  for  making  and  repair- 
ing bridges  for  the  year  1882,  including  one-half  the  cost  of  this  new 
bridge;  that  an  estimate  of  the  cost  of  this  bridge  was  procured  from 
the  county  surveyor,  of  which,  however,  no  record  was  made;  of  the 
rate  per  cent,  of  the  levy  for  bridge  purposes ;  of  the  amount  collected 
and  turned  over  to  the  commissioners,  and  what  part  of  it  was  for  this 
new  bridge, — to  all  of  which  objection  was  sustained.  As  will  be  seen, 
every  material  fact  offered  to  be  proved  by  parol  should  have  appeared 
in  the  record  of  the  action  of  the  commissioners,  or  was  capable  of 
proof  by  the  public  records  of  the  county,  and  the  ruling  of  the  circuit 
court  was  correct. 

Relators  did  read  in  evidence  their  petition  to  the  county  board  ask- 
ing for  county  aid,  and  also  the  record  of  the  action  of  the  county 
board  thereon,  from  which  it  appeared  an  allowance  from  the  county 
treasury  was  made  of  $1,000.  The  fact  that  the  county  board  was  peti- 
tioned for  county  aid  might,  no  doubt,  be  shown  by  the  petition  itself; 
but  such  petition,  though  made  and  signed  by  the  commissioners,  can- 
not be  regarded  as  proof  of  the  facts  recited  therein,  so  as  to  supply 
the  absence  or  take  the  place  of  the  record  of  the  commissioners'  ac- 
tion required  by  the  law  to  be  kept.     *     *     * 

Perceiving  no  error  in  the  judgment  of  the  Appellate  Court,  it  is 
affirmed.^* 


SECTION  16.— SAAIE— IN  COLLATERAL  PROCEEDINGS 


NEALY  V.  BROWN  et  al.,  County  Com'rs. 
(Supreme  Court  of  Illinois,  1844.     1  Giliuau,  10.) 

Debt  on  the  statute  for  obstructing  a  public  highway.  The  cause 
was  heard  in  the  Greene  circuit  court,  before  Hon.  Samuel  D.  Lock- 
wood  and  a  jury,  at  the  October  term,  1843 ;  the  venue  having  been 
changed  from  Jersey  county.  The  jury  found  a  verdict  against  the 
defendant  below,  and  a  fine  of  $20  was  imposed,  from  which  judgment 
he  prosecutes  his  writ  of  error  in  this  court. 

Caton,  J.  This  was  an  action  of  debt  for  obstructing  a  public  high- 
way, commenced  before  a  justice  of  the  peace  of  Jersey  county,  and 
appealed  to  the  circuit  court  of  that  county,  whence  the  venue  was 

14  As  to  defective  and  erroneous  records,  see  Dillon,  Municipal  Corporations, 
§§  295-.301 ;  also  State  ex  rel.  Bricknian  v.  Wilson,  12.3  Ala.  259,  26  South. 

1 482,  45  L.  R.  A.  772  (1899).     That  a  record  cannot  be  allowed  to  be  amended 

{to  the  prejudice  of  a  party  who  relied  upon  action  as  it  appeared  on  the 
record,  see  Sawyer  v.  Railroad,  62  N.   11.  135,  13  Am.   St.  Rep.  541   (1882); 

iBissell  V.  Jeffersonville,  24  How.  287,  16  L.  Ed.  064  (1860). 

I     There  are  many  statutory  provisions  relating  to  presumption  of  regularity, 

(especially  in  highway  proceedings  and  tax  sales. 


100  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

changed  to  the  circuit  court  of  the  county  of  Greene.  The  record 
presents  two  bills  of  exceptions,  from  the  first  of  which  it  appears 
that,  upon  the  trial  of  the  cause,  the  plaintiffs  below  offered  in  evidence 
a  certified  copy  of  an  order  of  the  county  commissioners'  court  of 
Jersey  county,  which  refers  to  and  adopts  the  report  of  the  viewers 
appointed  to  view  and  locate  the  road  for  the  obstruction  of  which 
this  suit  was  brought,  and  establishes  said  road  as  a  public  highway, 
and  directs  that  the  same  be  opened  and  kept  in  repair  according  to 
law.  To  this  the  defendant  objected,  but  the  court  allowed  it  to  be 
read,  and  this  we  will  first  examine. 

Was  it  necessary,  before  it  was  competent  to  read  this  order,  to 
show  that  all  the  previous  steps  required  by  the  statute  had  been 
taken?  We  think  not.  The  county  commissioners  are  vested  with 
exclusive  jurisdiction  over  all  matters  in  relation  to  roads  in  their  re- 
spective counties,  and  we  are  satisfied  that  sound  policy  and  the  pub- 
lic good  require  that  we  should  presume  that  the  antecedent  proceed- 
ings had  been  regular,  subject,  however,  to  be  rebutted  by  the  other 
party.  If  we  go  behind  the  order,  I  know  not  where  we  might  stop. 
Should  the  plaintiff  show  that  a  petition  was  presented,  signed  by  the 
requisite  number  of  persons,  and  should  he  be  required  to  prove  that 
all  were  legal  voters,  that  the  viewers  were  qualified  to  act  as  such, 
and  were  sworn,  and  all  the  other  minute  inquiries  which  ingenuity 
could  invent  ?  Should  such  be  held  to  be  the  law,  we  should  be  drawn 
into  the  trial  of  a  great  number  of  collateral  issues  in  no  wise  im- 
portant to  the  justice  of  the  case.  Should  such  a  rule  be  adopted,  most, 
if  not  all,  of  the  public  roads  in  the  older  counties  might  be  shut  up  to- 
morrow with  impunity. 

In  the  case  of  Eyman  v.  People,^  ^  decided  at  the  September  term, 
1842,  1  Gilman,  8,  this  court  went  farther  than  we  are  now  called 
upon  to  go.  There  it  was  held  that  it  was  not  necessary  to  produce  any 
record  evidence  of  the  road.  In  that  case  the  court  say:  "It  is  in- 
sisted that  the  original  survey  and  plat  of  the  road,  and  the  records  of 
the  commissioners'  court  approving  the  same,  and  directing  the  road 
to  be  opened,  should  have  been  produced  as  the  best  evidence  that  it 
was  a  public  road.  No  authority  has  been  cited,  nor  are  we  aware  of 
any  adjudicated  case  sustaining  this  position.  The  practice  would  be 
very  inconvenient,  and  would  tend  rather  to  defeat  than  promote  the 
ends  of  justice.  If  the  road  is  used  and  traveled  by  the  public  as  a 
highway,  and  is  recognized  and  kept  in  repair  as  such  by  the  county 
commissioners  and  supervisor,  whose  duty  it  is  by  law  to  open  and 
repair  public  roads,  proof  of  these  facts  furnishes  a  legal  presumption, 
liable  to  be  rebutted,  that  such  road  is  a  public  highway." 

The  laying  out  and  opening  of  roads  is  not  an  exercise  of  judicial 
powers,  and  hence  the  position  that  no  presumptions  are  to  be  indulged 
in  their  favor  is  not  tenable.     As  well  might  he,  who  is  affirming  the 

1 5  Indictment  of  county  commissioners  for  omission  of  duty  in  neglecting 
to  cause  repairs  to  be  made. 


Ch.  3)  FORM  AND  PROOF  OF  OFFICIAL  ACTS.  101 

sale  of  school  land,  be  required  to  show  that  a  petition  for  the  sale 
of  the  land  had  been  presented  by  the  requisite  number  of  householders 
of  the  township.     -''=     *     *  ^"^ 


vSTATE  V.  WEIMER. 

(Supreme  Court  of  Iowa,  1884.     64  Iowa,  243,  20  N.  W.  171.) 

Appeal  from  Lee  district  court. 

Defendant  was  convicted  of  obstructing  a  highway,  and  now  ap- 
peals to  this  court. 

Beck^  J.  The  only  evidence  introduced  by  the  state  to  prove  that 
the  road,  for  the  obstructing  of  which  defendant  was  indicted,  is  a 
lawfully  established  highway,  consists  of  the  commissioners'  road  rec- 
ord, a  book  in  the  custody  of  the  auditor  of  the  county,  and  an  official 
copy  of  the  original  plat  of  the  road.  There  was  evidence  tending 
to  show  that  the  road  indicated  by  these  records  had  been  opened,  and 
afterwards  obstructed  by  defendant. 

The  road  record  fails  to  show  that  the  notice  required  by  the  stat- 
ute (Code,  §  936)  had  been  given,  and  there  is  no  recitation  or  aver- 
ment therein  tending  to  show  that  any  notice  was  given  to  defendant 
upon  whose  land,  it  appears  to  be  claimed,  the  road  was  located.  Nor 
does  the  record  show  that  defendant  appeared  in  the  proceeding,  and 
thus  waived  service  of  notice.  It  is  recited  that  the  road  was  "by  con- 
sent of  attorneys  of  parties  herein,  and  request  of  board,  declared  to 
be  forty  feet  in  width."  But  it  is  not  shown  by  the  record,  nor  by  ev- 
idence aliunde,  if,  indeed,  it  were  competent,  which  we  do  not  de- 
termine, that  defendant  appeared  to  the  proceedings,  or  had  notice 
thereof  at  any  time,  or  that  he  was  a  party  to  the  case  before  the  su- 
pervisors. The  defendant  proposed  to  prove  that,  by  an  agreement 
between  the  board  of  supervisors  and  himself,  the  road  was  to  be  es- 
tablished as  of  the  width,  of  thirty-three  feet.  But,  upon  the  objec- 
tion of  the  state,  this  evidence  was  rejected.  There  was  no  evidence 
of  any  character  tending  to  show  that  defendant  was  served  with  the 
notice  required  by  law,  or  waived  service  thereof. 

This  court  has  held  in  a  similar  case  that,  as  the  petition  and  notice 
required  by  law  in  proceedings  to  establish  roads  are  necessary  to  con- 
fer jurisdiction  upon  the  supervisors  in  road  cases,  they  must  be 
shown  by  the  record,  and  that,  in  the  absence  of  such  showing,  no  pre- 
sumption will  obtain  in  support  of  the  jurisdiction  of  the  supervisors. 
State  v.  Berry,  13  Iowa,  58.  There  being  no  evidence  that  the  super- 
visors acquired  jurisdiction  to  establish  the  road  in  this  case,  and  no 
presumption  thereof  authorized  by  law,  the  proceedings  are  void. 
Alcott  V.  Acheson,  49  Iowa,  569. 

16  The  rest  of  the  opinion  is  omitted.  It  is  stated  in  the  furtlier  course  of 
the  opinion  that  from  the  record  it  does  not  appear  that  any  evidence  was 
given  tending  to  establish  that  the  road  obstructed  was  on  defendant's  land. 


102  ADMINISTRATIVE   POWER   AND   ACTION,  (Part    1 

We  understand  that  the  court  below,  in  the  second  instruction,  held 
that  the  records  of  the  supervisors  conclusively  prove  that  the  high- 
way was  lawfully  established.  The  instruction,  in  the  form  we  find  it 
in  the  abstract,  is  not  clearly  expressed,  but  it  certainly  recognizes  the 
sufficiency  of  the  record  to  show  that  the  road  was  a  lawful  highway. 
The  instruction  is  erroneous.  On  the  contrary,  the  jury  should  have 
been  informed  that  the  evidence  failed  to  show  that  the  road  obstructed 
by  defendant  was  established  by  law.  As  these  considerations  are 
decisive  of  the  case,  other  questions  argued  by  counsel  need  not  be 
considered. 

The  judgment  of  the  district  court  is  reversed.^ ^ 


LINGO  V.  BURFORD. 

(Supreme  Court  of  Missouri,  1892.     112  Mo.  149,  20  S.  W.  459.) 

GanTT,  J.  This  is  a  proceeding  by  injunction,  commenced  in  the 
circuit  court  of  Johnson  county,  by  which  the  plaintifif  sought  to  re- 
strain the  defendant,  Burford,  as  road  overseer,  from  opening  a  public 
road  over  and  through  lands  of  the  plaintiff,  under  an  order  of  the 
county  court. 

The  material  averments  of  the  petition  are  that  "no  legal  notice  was 
ever  given  of  the  presentation  of  a  petition  for  such  an  order;  that 
the  county  commissioner  did  not  survey,  view,  or  mark  out  a  roadway 
over  said  land,  or  take  relinquishments  of  right  of  way  for  same,  or 
ask  for  such  relinquishments,  or  make  any  report  of  his  action,  as  the 
law  requires,  and  that  plaintiff  has  never  in  fact  relinquished  the  right 
of  way  for  a  road  over  said  land ;  that  there  has  never  been  any  assess- 
ment of  damages  to  be  done  the  land  of  the  plaintiff  by  the  establish- 
ment of  said  road ;  that  the  pretended  order  of  record  establishing 
said  road  is  void  upon  its  'face,  for  want  of  jurisdiction  to  make  the 
same." 

The  plaintiff,  to  sustain  his  case,  introduced  the  record  of  the  pro- 
ceedings in  the  county  court.  The  petition  on  its  face  alleged  that 
the  petitioners  were  freeholders  of  Chilhowie  and  Post  Oak  town- 
ships, through  which  said  proposed  road  ran ;  that  it  was  signed  by  at 
least  13  freeholders  of  said  township,  and  it  specified  the  proposed  be- 
ginning, course,  and  termination,  with  not  less  than  two  points  named 
on  the  direction.  Section  7796,  Rev.  St.  1889.  It  was  presented  and 
publicly  read  at  the  regular  August  term  of  the  county  court,  1887. 

The  record  made  by  the  county  court  at  that  term  is  as  follows : 
"Now,  at  this  day,  is  presented  to  the  court  the  petition  of  A.  J.  Dun- 

17  "The  order  of  revocation  was  introduced  without  objection;  but,  if  it 
contained  no  statement  showing  a  jurisdiction  in  the  board,  it  certainly  was 
insufficient  for  that  purpose :  and  it  contains  nothing  which  indicates,  that 
they  proceeded  under  a  written  complaint."  State  v.  Lamos,  26  Me.  258 
(1846).  post,  p.  183. 

See  Little  v.  Denn,  34  N.  Y.  452  (1866). 


Ch.  3)  FORM  AND  PROOF  OF  OFFICIAL  ACTS.  103 

ham  et  al.,  praying  for  the  estabHshment  of  a  pubHc  road  forty  feet 
in  width  in  Chilhowie  and  Post  Oak  townships,  to  run  as  follows : 
[Here  follows  a  minute  description  of  the  route.]  And  the  court 
having  heard  said  petition  publicly  read,  and  it  being  proven  to  the 
satisfaction  of  the  court  that  it  is  signed  by  at  least  twelve  freeholders 
of  Chilhowie  and  Post  Oak  townships,  three  of  whom  are  of  the  im- 
mediate neighborhood  of  said  proposed  road,  and  that  due  notice  has 
been  given  according  to  law,  and  that  said  proposed  road  is  of  public 
utility  and  practicability,  it  is  ordered  that  the  county  commissioner 
proceed  to  view,  survey,  and  mark  out  said  road,  and  report  the  prac- 
ticability of  said  road,  together  with  the  distances  and  situation  of  the 
ground,  the  names  of  the  parties  granting  the  right  of  way,  and  the 
estimated  cost  of  building  needed  bridges,  at  the  next  regular  term  of 
this  court." 

At  the  next  November  term,  the  county  road  commissioner  filed  his 
report,  showing  the  landowners  who  had  relinquished  the  right  of  way 
and  those  wdio  had  not.  Among  those  who  had  failed  or  refused  to  re- 
linquish, he  reported  the  plaintiff,  H.  J.  Lingo,  and  that  he  claimed 
$100.  Thereupon  the  county  court,  as  required  by  section  7799,  Rev. 
St.  1889  (section  8,  p.  247,  Laws  1887),  by  its  order  of  record,  ap- 
pointed three  disinterested  freeholders  to  act  as  a  jury,  view  the  prem- 
ises, and  assess  the  damages  of  those  who  had  failed  or  refused  to  re- 
linquish the  right  of  way.  At  the  next  February  term,  the  commis- 
sioners thus  appointed  made  their  report,  in  which  they  returned  that 
they  had  viewed  the  premises,  and  assessed  the  damages  of  each  tract 
of  land  separately,  and  the  report  as  to  the  plaintiff  was  as  follows : 
"To  H.  J.  Lingo,  at  end  N.  E.  N.  E.  section  26,  township  44,  and 
range  26 — no  damages." 

Thereupon  the  court  made  the  following  order:  "Now,  at  this  day 
is  taken  up  the  report  of  the  commissioners  heretofore  appointed  to 
assess  the  damages  resulting  to  the  premises  of  L.  P.  Fisher,  H.  J. 
Lingo,  and  others,  by  reason  of  the  establishment  of  a  public  road  pe- 
titioned for  by  A.  J.  Dunham  et  al.,  from  which  the  court  finds  that 
said  commissioners  have  viewed  the  premises  of  the  parties  aforesaid, 
and  have  allowed  no  damages;  and  no  objections  being  filed  to  the 
verdict  of  said  jury,  and  it  appearing  to  the  court  that  said  proposed 
road  is  of  sufficient  utility  to  justify  opening  and  improving  the  same 
for  public  travel,  it  is  therefore  ordered  that  a  public  road  forty  feet 
in  width  be  opened,  and  run  as  folbws :  [Describing  the  route  par- 
ticularly.]" 

The  circuit  court  granted  a  perpetual  injunction  against  the  road 
overseer,  from  which  he  appeals  to  this  court. 

The  contention  arises  as  to  the  jurisdiction  of  the  county  court  to 
order  the  road  opened.  Plaintiff  in  error  insists  that  the  record  of 
recital  of  the  county  court  "that  due  notice  has  been  given  according 
to  law,"  nothing  further  appearing,  was  sufficient  in  this  collateral 
proceeding  to  show  jurisdiction  in  that  court,  so  far  as  it  was  es- 


104  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

sential  to  show  notice,  whereas  defendant  in  error  maintains  that  the 
recital  is  insufficient. 

That  the  county  court  was  only  authorized  to  entertain  the  proceed- 
ing to  condemn  plaintiff's  land  for  the  road,  upon  notice  given  as  re- 
quired by  the  statute  (section  7797),*  is  not  to  be  questioned,  but  it  is  a 
well-settled  principle  that,  where  the  jurisdiction  of  an  inferior  court 
depends  upon  a  fact  which  said  court  is  required  to  ascertain  and 
settle  by  its  decision,  its  decision  is  conclusive  as  against  a  collateral 
attack.  Jackson  v.  State,  104  Ind.  516,  3  N.  E.  863 ;  In  re  Grove 
Street,  61  Cal.  438;  People  v.  Hagar,  53  Cal.  171;  Shawhan  v.  Lof- 
fer,  24  Iowa,  217 ;  Porter  v.  Purdy,  29  N.  Y.  106,  86  Am.  Dec.  283 ; 
Lewis,  Em.  Dom.  §  605 ;  Black,  Judgm.  §  288 ;  Elliott,  Roads  &  S.  p. 
243 ;  State  v.  Smith,  105  Mo.  6,  16  S.  W.  1052. 

The  county  court  had  original  exclusive  jurisdiction  to  hear  and 
determine,  upon  a  proper  petition  and  due  notice,  whether  a  new  public 
road  should  be  established  over  the  route  designated  in  the  petition. 
The  petition  stated  every  fact  necessary  to  give  the  court  jurisdiction 
of  the  subject-matter.  Twenty  days'  notice  of  this  application  was 
required.  The  statute  required  "proof  of  notice  having  been  given  as 
required."  The  county  court  was  the  tribunal  authorized  to  hear  and 
determine  the  sufficiency  of  the  proof.  It  was  not  required  by  law 
to  spread  on  its  record  the  evidence  by  which  it  ascertained  that  no- 
tice had  been  given.  It  did  find  and  spread  on  its  record  that  "notice 
had  been  given  according  to  law."  This  was  a  fact  in  pais,  to  be  es- 
tablished by  evidence,  and  its  power  to  proceed  further  in  the  case 
depended  upon  the  giving  or  failure  to  give  this  notice.  It  judicially 
ascertained  it  was  given,  and  we  think  that  it  is  conclusive  as  against 
a  collateral  attack. 

In  Daugherty  v.  Brown,  91  Mo.  26,  3  S.  W.  210,  a  case  in  all  re- 
spects similar  to  this,  this  court  held  a  recital  that  "due  legal  notice 
had  been  given  of  the  intended  application"  was  sufficient,  and  affirmed 
the  judgment  o'f  the  circuit  court,  refusing  to  enjoin  the  overseers 
from  opening,  the  road.  The  decision  in  that  case  is  well  sustained  by 
authority  elsewhere.  Hendrick  v.  Whittemore,  105  Mass.  23 ;  Bor- 
den v.  State,  11  Ark.  519,  44  Am.  Dec.  217;   Delaney  v.  Gault,  30  Pa. 

g3  *        *        *   18 

*  Rev.  St.  1889,  §  7797,  provides  tlint  notice  of  au  intended  application  for 
a  new  road  or  cliange  of  road  "sliall  be  given  by  printed  or  written  hand- 
bills pnt  up  in  three  or  more  public  places  in  such  municipal  township  or 
townships,  one  of  which  to  be  put  up  at  the  proposed  beginning,  and  one  at 
the  proposes!  termination,  of  said  road,  at  least  twenty  days  before  the  first 
day  of  a  regular  term  of  the  county  court  at  which  the  petition  is  presented, 
and  which  notice  shall  apply  and  be  binding  on  corporations  as  well  as  on 
persons." 

18  The  rest  of  the  opinion  is  omitted. 


Cll.  3)  FORM  AND   PROOF   OF   OFFICIAL  ACTS.  101 


SECTION  ir.— EVIDENCE  OF  OFFICIAL  CHARACTER 


JOHNSON  V.  STEDMAN. 
(Supreme  Court  of  Ohio,  1827.     3  Ohio,  94.) 

This  cause  came  up  on  a  motion  for  a  new  trial,  adjourned  here 
from  the  county  of  Meigs.  It  was  an  action  of  trespass  for  taking 
and  converting  goods.  The  defendant  pleaded  that  he  was  a  con- 
stable, and  that  an  execution  was  put  into  his  hands  to  be  levied,  by 
virtue  of  which  he  took  the  goods  in  question  as  the  property  of  the 
defendant  in  execution,  the  now  plaintiff.  Upon  this  plea  issue  was 
joined.  At  the  trial  the  defendant,  to  establish  the  fact  that  he  was 
a  constable,  offered  parol  evidence,  and  no  other,  that  he  acted  and 
officiated  as  constable  of  the  township  at  the  time  the  levy  was  made. 
The  plaintiff  objected  to  the  admission  of  this  evidence,  but  the  court 
received  it,  and  a  verdict  passed  for  the  defendant.  A  motion 
was  made  'for  a  new  trial,  upon  the  ground  that  improper  testimony 
was  admitted ;  maintaining  that  the  actual  appointment  in  writing,  and 
other  requisites,  should  be  produced  in  evidence. 

Hitchcock,  J.^®  The  question  now  presented  to  the  court  was 
considered  at  the  last  term,  in  the  case  of  Barret  v.  Reed,  2  Ohio,  400, 
but,  inasmuch  as  there  was  some  difference  of  opinion,  and  that  case 
was  decided  upon  a  different  point,  was  left  undetermined. 

But  one  serious  objection  is  made  to  the  admissibility  of  the  evi- 
dence received  on  the  trial  of  the  issue  in  this  case.  It  is  this :  That 
if  such  testimony  is  received,  the  rule  "that  the  best  evidence  which 
the  nature  of  the  thing  admits,  and  is  capable  of,  must  always  be 
given,"  will  be  violated.     *     *     * 

Constables  in  Ohio  are  township  officers,  although  in  some  few  in- 
stances they  may  serve  process  in  any  part  of  the  county.  They  are 
elected  by  the  people  at  their  annual  township  elections,  and  any  per- 
son elected  and  refusing  to  serve  is  subject  to  a  penalty.  Within  ten 
days  after  the  election,  the  individual  elected  is  to  take  an  oath  of  of- 
fice, which  oath  may  be  administered  by  the  township  clerk,  or  any 
other  person  having  general  authority  to  administer  oaths.  In  addi- 
tion to  this,  before  entering  on  the  duties  of  his  office,  he  must  give  a 
bond  with  one  or  more  sureties,  to  be  approved  O'f  by  the  trustees  of 
the  township,  for  a  sum  not  exceeding  two  thousand  dollars,  payable 
to  the  state  of  Ohio,  conditioned  for  the  faithful  discharge  of  those 
duties.  The  election,  the  giving  of  bonds,  the  approval  of  the  sure- 
ties, the  administration  of  the  oath  of  office,  ought  to  be  noted  by 
the  township  clerk  in  his  book  of  record.     This  would  undoubtedly 

1 9  A  portion  of  the  opinion  is  omitted. 


106  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

be  done  should  the  clerk,  and  every  other  officer  concerned,  do  their 
duty.  The  constable,  however,  receives  no  certificate  or  other  writ- 
ten document  to  prove  his  official  character  and  qualifications.  The 
best  evidence  "the  nature  of  the  thing  admits  of"  to  prove  this  of- 
ficial character  would  undoubtedly  be  the  township  records,  provided 
these  records  had  been  properly  kept.  Experience,  however,  teaches 
us  that  in  many  parts  of  the  country  these  records  are  so  loosely  kept 
that  we  are,  from  necessity,  compelled  to  resort  to  evidence  of  a  sec- 
ondary nature. 

Under  these  circumstances,  does  either  policy,  justice,  or  law  dictate 
that,  in  cases  like  the  present,  we  should  strictly  adhere  to  the  rule 
that  the  best  evidence  which  the  nature  of  the  thing  admits  of  and 
is  capable  of  shall  be  given?  So  far  as  it  respects  third  persons,  there 
is  no  doubt  on  the  subject.  Where  such  persons  are  interested,  it  is 
believed  to  be  the  practice  of  all  courts  to  permit  them  to  prove  that 
an  individual  who  claims  to  be  a  public  officer  is  such  de  facto,  with- 
out requiring  them  to  prove  that  he  is  such  de  jure.  The  great  danger 
which  will  result  from  adopting  the  same  rule  of  evidence,  where  the 
officer  himself  is  a  party,  is  not  readily  conceived.  There  is  a  differ- 
ence, it  is  true,  between  the  two  cases.  Every  man  who  undertakes" 
to  exercise  the  duties  of  an  office  ought  to  know  whether  he  is  legally 
qualified,  while  this  knowledge  cannot  be  supposed  to  extend  to  others. 
This  difference  of  circumstances,  however,  is  not  so  great  as  to  require 
a  difference  in  the  rule  of  evidence. 

In  deciding  this  question,  it  may  not  be  improper  to  turn  our  at- 
tention for  a  moment  to  the  nature  of  those  suits  in  which  constables 
or  other  ministerial  officers  are  parties.  In  some  cases  the  principal 
question  is  whether  the  party  is,  or  is  not,  an  officer  de  jure.  But 
such  cases  are  not  of  frequent  occurrence.  Were  it  otherwise,  it 
might  be  expedient  to  adopt  a  different  rule  of  evidence.  It  is  be- 
lieved, however,  that  in  ninety-nine  cases  in  a  hundred  this  is  a  question 
of  secondary  importance.  The  object  more  generally  is  to  determine 
the  right  of  property,  the  legality  of  process,  the  validity  of  an  arrest, 
or  something  of  a  similar  nature.  In  most  of  these  cases,  to  require  of 
the  party,  claiming  to  be  a  public  officer,  proof  that  he  had  complied 
with  every  requisite  of  the  law  to  qualify  him  to  act,  would  be  at- 
tended with  unreasonable  inconvenience  to  him,  without  any  com- 
mensurate advantage  to  his  opponent. 

In  the  case  before  the  court,  the  real  question  in  dispute  was  not 
whether  Stedman  was  a  constable,  but  whether  the  house  which  w^as 
the  subject-matter  of  litigation  was  the  property  of  Johnson,  the 
plaintiff,  or  the  property  of  Hollingsworth.  Under  these  circum- 
stances, the  evidence  was  properly  received.  It  was  sufficient  for  the 
purposes  of  this  case  to  prove  that  Stedman  was  a  constable  de  facto. 

The  principle  here  decided  is  supported  by  high  and  unquestionable 
authority.  In  the  case  of  Potter  v.  Luther,  3  Johns.  431,  the  Su- 
preme Court  of  the  state  of  New  York  say :    "It  is  a  general  rule  to 


Cll.  3)  FORM  AND   PROOF  OF  OFFICIAL  ACTS.  107 

admit  proof  by  reputation  that  a  person  acts  as  a  general  public  of- 
ficer or  deputy."  In  Berryman  v.  Wise,  4  Term,  336,  the  Court  of 
King's  Bench,  in  England,  decided  that  in  the  case  of  all  peace  of- 
ficers, justices  of  the  peace,  constables,  etc.,  it  was  sufficient  to  prove 
that  they  acted  in  these  characters,  without  producing  their  appoint- 
ment. This,  to  be  sure,  was  the  expression  of  Justice  Buller ;  but, 
from  an  examination  of  the  case,  I  am  satisfied  it  was  the  opinion  of 
the  whole  court.  So  in  Esp.  Dig.  783,  it  is  laid  down  that  cases  sim- 
ilar to  the  one  under  consideration  are  exceptions  to  the  general  rule 
"that  the  best  evidence,  etc.,  must  always  be  given." 

Upon  the  whole,  we  are  of  opinion  that  the  motion  for  a  new  trial 
must  be  overruled  and  judgment  entered  on  the  verdict. 


ELDRED  V.  SEXTON. 

(Supreme   Court   of   Ohio,   1831.     5   Ohio,   21.5.) 

Action  of  trespass  against  the  treasurer  of  a  school  district  for  tak- 
ing and  converting  a  yoke  of  oxen,  which  were  seized  for  nonpayment 
of  a  tax. 

Per  Curiam.  The  question  raised  in  the  case  seems  to  have  been 
settled  by  this  court,  in  the  case  of  Johnson  v.  Stedman,  3  Ohio,  94. 
In  that  case  it  was  decided  that  a  person,  who  has  justified  an  act 
upon  the  ground  that  he  was  a  constable,  might  establish  his  official 
character  by  general  reputation  and  proof  that  he  acted  as  such.  We 
are  not  disposed  to  change  the  principle  established  in  that  case.  In 
fact,  we  are  satisfied  that  it  is  more  consistent  with  the  ends  of  justice 
than  to  establish  a  contrary  rule  of  evidence.  We  do  not  say  that  such 
evidence  is  conclusive ;  but  that  it  is  prima  facie,  and,  unless  contra- 
dicted, must  be  conclusive.-" 


McCOY  V.  CURTICE. 

(Supreme  Court  of  Judicature  of  New  York,  1S32.     9  Wend.  17,  24  Am.  Dec. 

113.) 

•    Error  from  the  Orange  common  pleas. 

McCoy  sued  Curtice  in  an  action  of  trover  for  a  watch.  The  de- 
fendant pleaded  the  general  issue.  The  plaintiiT  proved  the  taking 
of  the  watch  and  its  value.  The  defendant  justified  as  collector  of  a 
school  district,  viz.,  school  district  No.  15,  situate  partly  in  the  town 
of  Warwick  and  partly  in  the  town  of  Goshen,  in  the  county  of  Orange. 
He  produced  a  warrant,  signed  by  S.  Jayne  and  J.  Fox,  as  trustees  of 

20  See  Case  v.  Hall.  21  111.  &32  (18.59),  defendant  desiring  to  justify  as  of- 
ficer must  allege  that  he  has  been  duly  elected  and  has  qualified ;  Rounds 
V.  Mansfield,  38  Me.  58G  (18-54),  must  prove  that  he  has  qualified. 


108 


ADMINISTRATIVE   TOWER   AND   ACTION. 


(Part  1 


tlie  school  district,  commanding  certain  moneys  to  be  levied  as  a  tax, 
and  amongst  others  of  McCoy,  and  proved  by  parol  that  Jayne  and 
Fox  were  reputed  to  be,  and  acted  as,  trustees  of  the  district,  and  also 
proved  by  parol  that  he,  the  defendant,  had  acted  as  collector,  and  that 
as  such  collector  he  had  levied  upon  the  watch  of  the  plaintiff.  The 
plaintiff  objected  to  the  parol  evidence  when  offered,  but  the  objection 
was  overruled.  He  also  objected  to  the  warrant  being  received  in  evi- 
dence, until  the  erection  of  the  district  was  shown  by  the  production  of 
the  records  of  the  towns  of  Warwick  and  Goshen,  and  insisted  that, 
even  were  they  produced,  the  warrant  was  illegal  in  having  been  is- 
sued by  only  two  instead  of  three  trustees.  These  objections  were  also 
overruled.  The  jury,  under  the  charge  of  the  court,  found  a  verdict 
for  the  defendant,  and  the  plaintiff  sued  out  a  writ  of  error. 

SuTHERi^AND^  J.  It  is  a  general  rule  in  relation  to  all  public  of- 
ficers that  they  may  establish  their  official  character  by  proving  that 
they  are  generally  reputed  to  be,  and  have  acted  as,  such  officers,  with- 
out producing  their  commission  or  other  evidence  of  their  appoint- 
ment. This  is  well  established,  as  to  all  peace  officers,  sheriff's,  con- 
stables, justices  of  the  peace,  etc.  4  T.  R.  36G ;  Potter  v.  Luther,  3 
Johns.  431 ;  Cowen's  Tr.  572,  note  "m" ;  Young  v.  Commonwealth, 
Bin.  (Pa.)  88;  Fowler  v.  Bebee,  9  Mass.  231,  6  Am.  Dec.  G2 ;  People! 
v.  Collins,  7  Johns.  549 ;  Mclnstry  v.  Tanner,  9  Johns.  135  ;  Reed  v.j 
Gillet,  12  Johns.  296  ;  Wilcox  v.  Smith,  5  Wend.  231,  21  Am.  Dec.  213 ; 
16  Viner,  113,  14.  ^ 

In  Rex  V.  Jones,  2  Campb.  131,  a  letter  was  permitted  to  be  read 
purporting  to  be  from  the  lords  commissioners  of  the  treasury,  with- 
out any  evidence  except  what  appeared  on  the  face  of  the  letter  that 
they  were  commissioners.  That,  too,  was  a  criminal  case,  and  it  wasi 
distinctly  objected  on  the  part  of  the  defendant  that  the  authority  of] 
the  commissioners  should  be  shown  by  producing  the  commission  by] 
which  they  were  appointed.  The  trustees  and  collector  of  a  school! 
district  are  regular  officers,  annually  chosen,  with  powers  and  duties 
well  defined  and  regulated  by  statute;  and  it  is  not  perceived  why] 
their  official  characters  may  not  be  shown  in  the  same  manner  as  that] 
of  a  justice  of  the  peace  or  a  constable.  They  are  officers  of  almost 
equal  notoriety,  and  the  duties  of  a  collector  are  very  much  of  the] 
same  nature,  as  those  of  a  constable.     Laws  1819,  p.  198,  §§  20  to  25. 

I  am  inclined  to  think,  therefore,  the  parol  evidence  upon  these] 
points  was  admissible.  Whether  it  was  sufficient  or  not  is  a  question 
which  does  not  arise  on  this  bill  of  exceptions.  The  objections  are] 
specifically  to  the  nature  of  the  evidence,  and  not  to  its  defect  or  suf- 
ficiency.    *     '^     *  -^ 

Judgment  affirmed. 


21  For  rest  of  opiuiou,  see  ante,  p.  SO. 


Ch.  3)  FORM  AND  PROOF  OF  OFFICIAL  ACTS.  109 

PATTERSON  v.  MILLER. 

(Court  of  Appeals  of  Keutucky,  1859.     2  Mete.  49.3.) 

Chief  Justice  Simpson  delivered  the  opinion  of  the  court.^^ 

This  action  was  brought  by  WilHani  F.  Patterson  against  James  P. 
jMiller  and  WilHam  H.  Haynes,  to  recover  damages  for  an  alleged  il- 
legal seizure  and  sale  by  them  of  his  personal  property.  The  plaintiff 
stated  in  his  petition  that  the  defendant  Miller  pretending  to  be  the 
sheriff  of  Russell  county,  when  in  reality  he  was  not  the  constitutional 
sheriff  of  that  county,  unlawfully  and  without  authority  took  into  his 
]iossession  and  sold  a  sorrel  mare,  the  property  of  the  plaintiff,  and 
that  the  defendant  Haynes  purchased  said  mare  at  the  aforesaid  illegal 
sale  and  converted  her  to  his  own  use. 

The  defendant  Miller  averred  in  his  answer  that  he  was  the  sheriff 
of  Russell  county,  duly  elected  and  qualified  according  to  law,  and  as 
such  seized  the  property  in  the  petition  mentioned,  and  made  sale 
thereof,  under  and  by  virtue  of  two  executions  which  issued  from  the 
office  of  the  presiding  judge  of  the  Russell  county  court,  and  were 
placed  in  his  hands  for  collection;  and  the  defendant  Haynes,  in  his 
answer,  admitted  that  he  had  purchased  the  property  so  sold,  and  in- 
sisted that  he  had  a  right  to  make  the  purchase,  as  the  property  was 
sold  under  execution  by  a  person  who  was  acting  as  sheriff  of  the 
county. 

The  defendant  Miller  read  as  evidence  upon  the  trial  the  certificate 
of  his  election  as  the  sheriff  of  Russell  county,  and  the  records  of 
the  county  court,  by  which  it  appeared  that  he  had  qualified  and  exe- 
cuted an  official  bond  as  sheriff',  according  to  law.  The  plaintiff'  then 
offered  to  prove  that  Miller  was  not  a  resident  of  Russell  county  at  the 
time  he  was  elected,  but  was  then,  and  still  was,  a  resident  of  Adair 
county.  This  testimony  was  rejected  by  the  court  on  the  ground  that 
the  certificate  of  the  examining  board  was  conclusive  evidence,  not 
only  of  Miller's  election  as  sheriff,  but  also  of  his  eligibility  to  the  of- 
fice. The  court,  however,  decided  that  evidence  might  be  offered  to 
show  that  he  had  removed  from  the  county  since  his  election,  although 
evidence  that  he  was  not  a  resident  of  the  county  at  the  time  of  his 
election  was  inadmissible.  The  correctness  of  this  decision  of  the 
court  below  is  the  only  question  presented  for  our  consideration. 

By  the  sixth  article  of  the  Constitution  it  is  provided  that  no  per- 
son shall  be  eligible  to  the  office  of  sheriff'  who  has  not  resided  one 
year  next  preceding  the  election  in  the  county  for  which  he  is  a  candi- 
date. *  -'•'■  '-^  Whether  the  acts  of  a  sheriff,  who  has  forfeited  his 
office  by  a  removal  from  the  county,  would  be  valid,  and  could  be  re- 
lied on  for  his  own  protection,  until  his  office  should,  by  a  direct  pro- 
ceeding against  him,  be  declared  vacant,  it  is  not  necessary  now  to  de- 

2  2  Only  a  portion  of  the  opinion  is  printed. 


110  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

termine.  Such  acts  would,  however,  according  to  well-settled  prin- 
ciples, be  legal  and  valid,  so  far  as  third  parties  were  concerned. 

But  where  a  person  is  constitutionally  ineligible  to  an  office,  he  will 
not  be  the  lawful  incumbent  thereof,  although  he  may  be  elected,  ob- 
tain a  certificate  of  his  election  from  the  examining  board,  take  the 
oath  of  office,  and  execute  the  bond  prescribed  by  law.  Are  the  acts 
of  the  officer  in  such  a  case  legal  to  any  extent ;  and,  if  so,  to  what 
extent  are  they  legal? 

As  he  holds  his  office  by  color  of  right,  and  acts  as  sheriff,  all  his 
acts  as  such  are  regarded  as  lawful,  so  far  as  third  parties  are  con- 
cerned. Public  policy  requires  that  they  should  be  so  regarded,  and 
that  his  official  authority  should  not  be  questioned  collaterally.  He 
acts  as  the  sheriff  of  the  county,  and  it  is  to  the  interest  of  its  citizens 
that  his  acts  should  be  declared  to  be  valid,  so  long  as  he  continues  thus 
to  act.  It  has  been  accordingly  held  that  a  person  unconstitutionally 
commissioned  a  justice  of  the  peace  was  an  officer  de  facto,  and  his 
acts  valid  as  to  third  persons.  Justices  of  Jefferson  County  v.  Clark, 
1  T.  B.  Mon.  86 ;  Wilson  v.  King,  3  Litt.  459,  14  Am.  Dec.  84.  He 
remains  an  officer  de  facto,  until  his  office  shall  be  declared  to  be  va- 
cant or  forfeited,  by  a  direct  proceeding  against  him,  instituted  and 
carried  on  for  that  purpose.     Stokes  v.  Kirkpatrick,  1  Mete.  143. 

Can  he,  however,  in  an  action  against  himself,  for  acting  as  sheriff, 
and  seizing  and  selling  the  property  of  the  plaintiff'  without  lawful 
authority,  defeat  the  right  of  recovery,  by  showing  that  he  acted  as 
an  officer  de  facto,  or  by  relying  on  his  certificate  of  election  and  quali- 
fication in  the  county  court,  as  conclusive  evidence  that  he  was  the 
lawful  sheriff  of  the  county? 

The  principle  is  well  established  that,  although  the  acts  of  an  of- 
ficer de  facto  are  valid  as  to  third  persons,  nevertheless  they  are  invalid 
so  far  as  he  is  himseJf  concerned;  and  his  mere  color  of  title  to  the 
office  will  not  avail  him  as  a  protection  in  actions  against  him  for  tres- 
passes on  person  or  property.     Rodman  v.  Harcourt,  4  B.  Mon.  239. 

It  only,  therefore,  remains  for  us  to  inquire  whether  the  certificate  of 
election  and  the  fact  that  he  qualified  and  gave  bond  in  the  county 
court,  as  prescribed  by  law,  furnish  conclusive  evidence  that  he  was 
the  lawful  incumbent  of  the  office  of  sheriff  of  Russell  county. 

The  examining  board  is  constituted  by  law  for  the  mere  purpose  of 
comparing  the  polls,  and  giving  a  certificate  of  his  election  to  the  can- 
didate having  the  largest  number  of  votes,  according  to  the  returns 
which  have  been  made  by  the  officers  who  conducted  the  election  at  the 
different  places  of  voting  in  the  county.  It  is  not  the  duty  of  this 
board  to  examine  into  or  decide  upon  the  qualifications  of  the  candi- 
dates -for  the  office  to  which  they  are  elected.  Consequently  the  cer- 
tificate which  it  issues  to  a  candidate  that  he  is  elected  to  an  office  is 
not  even  prima  facie  evidence  that  he  was  eligible  to  the  office,  al- 
though conclusive  evidence  that  he  was  elected  thereto,  unless  his 
election  be  contested  before  the  proper  board. 


Ch.  3)  FORM  AND  TROOF  OF  OFFICIAL  ACTS.  Ill 

The  duty  which  the  law  devolves  upon  the  county  court,  in  regard 
to  the  sheriff,  only  extends  to  the  administration  of  the  appropriate  oath 
of  office,  and  the  taking-  of  a  bond  with  sufficient  sureties  to  be  ap- 
proved of  by  it.  The  performance  of  this  duty  is  incumbent  on  the 
county  court  whenever  a  person  claiming  to  be  entitled  to  the  office 
of  sheriff  presents  a  certificate  of  his  election  from  the  proper  board. 
The  court  has  no  power  to  inquire  into  his  eligibility,  or  to  refuse  to 
permit  him  to  qualify  and  execute  a  bond  according  to  law,  on  the 
ground  that  he  is  ineligible  to  the  office.  Consequently,  the  fact  that 
he  has  qualified  and  given  an  official  bond  in  the  county  court  as  sher- 
iff cannot  be  relied  upon  to  prove  his  eligibility  to  the  office.     *     *     =^ 

We  decide,  therefore,  in  this  case,  that  as  Miller  acted  under  color 
of  title  to  the  office  of  sheriff  the  sale  made  by  him  under  the  execu- 
tions in  his  hands  is  sufficient  to  protect  the  purchaser.  But  if  he 
were  constitutionally  ineligible  to  the  office  of  sheriff  when  elected, 
the  law  will  not  so  far  encourage  a  violation  of  the  Constitution  as 
to  permit  him  to  protect  himself  under  a  mere  color  of  authority,  exer- 
cised in  opposition  to  an  express  mandate  of  the  Constitution,  when, 
too,  he  must  have  known  that  his  title  to  the  office  was  not  legal,  and, 
therefore,  that  all  his  acts  as  sheriff  were  without  authority  and 
against  law. 

The  court  below,  therefore,  erred  in  rejecting  the  evidence,  which 
was  oft'ered  to  be  introduced  on  the  trial,  to  prove  that  Miller  was  not 
a  resident  of  Russell  county  when  he  was  elected  to  the  office  of  sheriff. 

Wherefore  the  judgment  is  reversed,  and  cause  remanded  for  a 
new  trial  and  further  proceedings  not  inconsistent  with  the  principles 
of  this  opinion. 

The  judgment  for  the  appellant's  costs  in  this  court  must  be  against 
Miller  alone.-^ 


SECTION  18.— DE  FACTO  OFFICE  AXD  AUTHORITY 


PEOPLE  ex.  rel.  BUSH  v.  COLLINS. 

(Supreme  Court  of  New  York,  1811.     7  Jolms.  549.) 

An  alternative  mandamus  was  directed  to  a  town  clerk,  command- 
ing him  to  record  the  survey  of  a  road,  pursuant  to  the  act  (Laws 
24th  Sess.  c.  186),  or  show  cause ;  and  the  clerk  returned  that  he  did 
not  record  the  survey  because  the  commissioners  had  not  taken  the 
oath  of  office,  and  filed  a  certificate  of  the  oath  with  the  clerk,  accord- 
ing to  the  act. 

2  3  See  Courser  v.  Powers,  .34  Vt.  517  (18G1). 


112  ADMINISTRATIVE   I'OWER   AND   ACTION.  (Part    1 

Per  Curiam.-*  *  *  *  Nor  is  the  allegation  material,  in  this 
case,  that  the  commissioners  had  not  caused  a  certificate  of  their  oath  of 
office  to  be  filed  in  the  town  clerk's  office.  If  the  commissioners  of 
highways  acted  without  taking  the  oath  required  by  law,  they  were 
liable  to  a  penalty;  or  the  town,  upon  their  default  in  complying  with 
the  requisition  of  the  statute,  might  have  proceeded  to  a  new  choice  of 
commissioners.  But  if  the  town  did  not  (and  it  does  not  appear  that 
they  did  in  this  case),  the  subsequent  acts  of  the  commissioners,  as 
such,  were  valid,  as  far  as  the  rights  of  third  persons  and  of  the  public 
were  concerned  in  them.  They  were  commissioners  de  facto,  since 
they  came  to  their  office  by  color  of  title ;  and  it  is  a  well-settled  prin- 
ciple of  law  that  the  acts  of  such  persons  are  valid  when  they  con- 
cern the  public,  or  the  rights  of  third  persons  who  have  an  interest  in 
the  act  done;  and  this  rule  is  adopted  to  prevent  the  failure  of  jus- 
tice. The  limitation  to  this  rule  is  as  to  such  acts  as  are  arbitrary  and 
voluntary,  and  do  not  affect  the  public  utility.  The  doctrine  on  this 
subject  is  to  be  found  at  large,  in  the  case  of  Rex  v.  Lisle,  Andrews, 
2()3.  It  certainly  did  not  lie  with  the  defendant,  as  a  mere  ministerial 
officer,  to  adjudge  the  act  of  the  commissioners  null.  It  was  his  duty 
to  record  the  paper ;  valeat  quantum  valere  potest.  It  was  enough  for 
him  that  those  persons  had  been  duiy  elected  commissioners  within 
the  year,  and  were  in  the  actual  exercise  of  the  office.  It  may  be  that 
the  oath  was  duly  taken,  and  that  the  omission  to  file  the  certificate  of 
it  was  owing  to  casualty  or  mistake.  The  validity  of  the  title  of  the 
commissioners  to  their  office  must  not  be  determined  in  this  collateral 
way. 

The  opinion  of  the  court,  accordingly,  is  that  the  rule  for  a  per- 
emptory mandamus  be  granted,-^ 


PEOPLE  v.  HOPSON. 

(Supreme  Court  of  New  York,  1845.     1  Deuio,  574.) 

The  defendants  were  indicted  for  assaulting  and  beating  Peter  Las- 
cells,  a  constable  of  the  town  of  Salisbury,  Herkimer  county,  and  re- 
sisting him  in  the  execution  of  his  duty  as  such  constable. 

Bronson,  C.  J.-®  *  *  '''  The  next  question  is  on  the  offer  to 
show  that  Lascells  had  not  taken  the  oath  of  office,  or  given  security, 
and  so  was  not  a  legal  officer.  The  evidence  would  be  proper  if  Las- 
cells,  instead  of  the  people,  was  the  party  complaining  of  an  injury. 
If  he  were  suing  to  recover  damages  for  tlic  assault,  it  would  probably 

2  4  Only  a  portion  of  the  opinion  is  printed. 

25  See  State  v.  Carroll,  38  Conn.  440,  9  Am.  Rep.  400  (1871);  also  an  arti- 
cle on  De  Facto  Office  by  K.  R.  Wallach,  in  22  Political  Science  Quarterly, 
450. 

2  6  Only  a  portion  of  the  opinion  is  printed. 


Ch.  3)  FORM  AND  PROOF  OF  OFFICIAL  ACTS.  113 

be  a  good  answer  to  the  action  that  he  was  not  a  legal  officer,  but  a 
wrongdoer,  who  might  be  resisted.  And  clearly  he  cannot  recover 
fees,  or  set  up  any  right  of  property,  on  the  ground  that  he  is  an  of- 
ficer de  facto,  unless  he  be  also  an  officer  de  jure.  Riddle  v.  County 
of  Bedford,  7  Serg.  &  R.  (Pa.)  386 ;  Keyser  v.  McKissan,  2  Rawle 
(Pa.)  139 ;  Fowler  v.  Beebe,  9  Mass.  231,  6  Am.  Dec.  62 ;  Green  v. 
Burke,  23  Wend.  490 ;  People  v.  White,  24  Wend.  526.  When  one 
man  attempts  to  exercise  dominion  over  the  person  or  property  of  an- 
other, it  becomes  him  to  see  that  he  has  an  unquestionable  title. 

But  it  is  equally  well  settled  that  the  acts  of  an  officer  de  facto, 
though  his  title  may  be  bad,  are  valid  so  far  as  they  concern  the  pub- 
lic, or  the  rights  of  third  persons  who  have  an  interest  in  the  things 
done.  Society  could  hardly  exist  without  such  a  rule.  I  will  only 
refer  to  two  or  three  cases  where  many  of  the  others  have  been  col- 
lected. People  V.  Stevens,  5  Hill,  630  ;  Green  v.  Burke,  23  Wend.  490 ; 
Taylor  v.  Skrine,  2  Tread.  Const.  (S.  C.)  696.  Now  here,  although 
Lascells  is  a  witness,  he  is  not  a  party;  nor  is  this  a  proceeding  for 
his  benefit.  The  people  are  prosecuting  for  a  breach  of  the  public 
peace;  and  it  is  enough  that  Lascells  was  an  officer  de  facto,  having 
color  of  authority.  The  rights  of  the  creditor,  the  due  administration 
of  justice,  and  the  good  order  of  society  all  concur  in  requiring  that 
he  should  be  respected  as  an  officer  until  his  title  has  been  set  aside 
by  due  process  of  law.     The  evidence  offered  was  properly  rejected. 


PEOPLE  ex  rel.  WINSTANLEY  v.  W^EBER. 

(Supreme  Court  of  Illinois,   1878.     89  111.  347.) 

This  was  an  application  in  this  court  by  Thomas  Winstanley,  as 
city  treasurer  of  the  city  of  East  St.  Louis,  for  a  writ  of  mandamus 
against  Herman  G.  Weber,  county  collector  of  St.  Clair  county,  to 
compel  him  to  pay  over  to  the  relator  moneys  collected  by  him  and 
taxes  belonging  to  the  city  of  East  St.  Louis.  The  defendant's  plea 
presented  the  question  of  the  validity  of  the  relator's  election. 
Mr.  Justice  Dickey  delivered  the  opinion  of  the  court.-^ 
While  the  acts  of  an  officer  de  facto  are  valid,  in  so  far  as  the  rights 
of  the  public  are  involved,  and  in  so  far  as  the  rights  of  third  persons 

2  7  Accord:  Heath  v.  State,  36  Ala.  273  (1800):  State  v.  Dierberser,  90  Mo. 
369,  2  S.  W.  286  (1886).  See  Commonwealth  v.  Kane,  108  Mass.  423,  11  Am. 
Rep.  373   (1871). 

See,  also,  Rodman  v.  Harcourt,  4  B.  Mon.  (Ky.)  224,  230  (1843),  warrant 
of  justice  de  facto  protects  constable;  Bedford  v.  Rice.  58  N.  H.  446  (1878), 
on  action  for  penalty  by  town  sufficient  that  health  officers  were  officers  de 
facto  only.  See,  also,  Patterson  v.  IMiller,  2  Mete.  (Ky.)  493  (1859),  ante, 
p.  109,  purchaser  from  de  facto  sheriff  protected. 

2s  Only  a  portion  of  the  opinion  is  printed. 
Fe.Adm.Law. — 8 


114  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

having  an  interest  in  such  acts  are  concerned,  still,  where  a  party  sues 
or  defends  in  his  own  right  as  a  public  officer,  it  is  not  sufficient  that 
he  be  merely  an  officer  de  facto.  To  do  this  he  must  be  an  officer  de 
jure.  As  an  officer  de  facto  he  can  claim  nothing  for  himself.  Peo- 
ple ex  rel.  Sullivan  v.  Weber,  86  111.  283.     *     *    * 

The  commission  under  which  relator  claims  title  recites  that  it  is  is- 
sued in  pursuance  of  an  election  held  on  the  16th  day  of  April,  1878, 
and  the  answer  to  relator's  petition  states  that  "it  is  from  this  pre- 
tended election  that  relator  obtains  all  the  title  he  has  to  the  pretended 
office  claimed  by  him."  This  allegation  of  the  answer  is  confessed 
by  demurrer.     *     *     *  -'' 

In  the  case  of  Stephens  v.  People  ex  rel.,  89  111.  337,  we  have  held 
void  the  election  through  which  relator  claims  to  have  acquired  the 
supposed  office.  ♦  *  *  j^^  follows  that  the  relator  is  not  a  public 
officer  of  the  character  held  necessary  to  entitle  him  to  the  relief 
sought.     The  application  for  a  writ  of  mandamus  must  be  denied. 

29  Accord:    Romero  v.  United  States,  24  Ct.  CI.  331  (1889). 


Ch.  4)  NOTICE.  115 

CHAPTER  IV. 
NOTICE 


SECTION  19.— IN  TAXATION 


BELL'S  GAP  R.  CO.  v.  COMMONWEALTH  OF 
PENNSYLVANIA. 

(Supreme  Court  of  United  States,  1890.     134  U.  S.  232,  10  Sup.  Ct.  533, 
33  L.  Ed.  892.) 

In  Error  to  the  Supreme  Court  of  Pennsylvania. 
Bradley^  J.^     *     *     *     By  the  law  of  Pennsylvania,  all  moneyed 
securities  are  subject  to  an  annual  state  tax  of  three  mills  on  the  dollar 
of  their  actual  value,  except  bonds  and  other  securities  issued  by  corpo- 
rations, which  are  taxed  at  three  mills  on  the  dollar  of  the  nominal  or 
par  value.     If  the  treasurer  of  a  corporation  fails  to  make  return  of 
its  loans,  as  required  by  law,  the  Auditor  General  makes  out  and  files 
an  account  against  the  company,  charging  it  with  the  tax  supposed  to 
be  due.     This  account,  i'f  approved  by  the  State  Treasurer,  is  served 
upon  the  corporation,  which  must  pay  the  tax  within  a  specified  time, 
or  show  good  cause  to  the  contrary.     If  it  objects  to  the  tax,  it  is 
authorized,  in  common  with  all  others  who  are  dissatisfied  with  the 
Auditor's  stated  accounts,  to  appeal  to  the  court  of  common  pleas  of 
the  county  where  the  seait  of  government  is  (at  present  Dauphin  coun- 
ty), which  appeal  is  served  on  the  Auditor  General,  and  by  him  trans- 
.  mitted  to  the  clerk  of  said  court,  to  be  entered  of  record,  subject  to 
;  like  proceedings  as  in  common  suits.     A  declaration  is  then  filed  on 
'  the  stated  account  in  behalf  of  the  state,  and  the  cause  is  regularly 
'tried.     In   the  present  case,  on   failure  of   the  company    (the   Bell's 
{ Gap   Railroad   Company)   to  make   return   except  under  protest,  the 
'  auditor  general  made  out  an  account  against  it,  containing  the  follow- 
ing charge: 

j  Nominal  value  of  scrip,  bonds,  and  certificates  of  indebtedness  own- 

:     ed  by  residents  of  Pennsylvania,  iF539,000— tax,   three  mills $1,G17  00 

■  The  company  thereupon  tendered  an  appeal,  which  was  filed  in  the 
icourt  of  common  pleas  of  Dauphin  county,  a  declaration  was  filed 
ion  the  part  of  the  state,  and  the  cause  was  tried  by  the  court,  a  jury 
jbeing  waived.     The  appeal  filed  by  the  corporation  (which  was  the 

1  Only  a  portion  of  the  opinion  is  printed. 


116  ADMIMSTKATIVE   TOWEU  AND   ACTION.  (Part    1 

basis  of  tlic  proceedings  in  llie  court)  contained  eight  grounds  of  ob- 
jection to  the  tax.  Most  of  these  objections  were  'founded  upon  the 
Constitution  or  laws  of  Pennsylvania,  and  need  not  be  noticed  here. 
The  second  objection,  which  refers  to  the  Constitution  of  the  United 
States,  was  as  follows,  to  wit :  "(2)  The  report  of  the  company's 
treasurer  was  made  under  protest,  and  does  not  constitute  an  assess- 
ment, and  the  tax  sought  to  be  imposed  on  so  much  of  the  company's 
loans  as  the  commonwealth  claims  to  be  held  by  residents  of  Penn- 
sylvania for  their  nominal  or  face  value,  which  varies  from  the  market 
value  on  account  of  the  differing  rates  of  interest,  etc.,  is  illegal,  and 
the  said  tax  cannot  be  lawfully  deducted  by  the  company's  treasurer 
from  the  interest  payable  to  the  holders  of  said  loans,  and  the  common- 
wealth's demands  contravene  section  1  of  the  fourteenth  amendment  to 
the  Constitution  of  the  United  States,  for  the  following  reasons." 

Among  the  reasons  then  assigned  are  (])  that  the  nominal  value  of 
the  bonds  is  not  their  real  value;  (2)  that  the  owners  of  the  bonds  have 
no  notice,  and  no  opportunity  of  being  heard ;  (3)  that  the  company  is 
taxed  for  property  it  does  not  own;  (4)  that  the  deduction  of  the  tax 
from  the  interest  payable  to  the  bondholders  is  taking  their  property 
without  due  process  of  law,  and  denies  to  them  the  equal  protection  of 
the  laws,  since  all  other  personal  property  in  the  state  is  taxed  at  its 
actual  value,  and  upon  notice  to  the  owners.  The  seventh  objection  is 
as  follows:  "(7)  The  tax  is  void,  as  impairing  the  company's  obliga- 
tion to  its  creditors."     *     *     ''' 

As  to  want  of  notice  to  the  owners  of  the  bonds :  What  notice 
could  they  have  which  the  law  does  not  give  them?  They  know  that 
their  bonds  are  to  be  assessed  at  their  face  value,  and  that  a  tax  of 
three  mills  on  the  dollar  of  that  value  will  be  imposed,  and  that  they 
will  only  be  required  to  pay  this  tax  when  and  as  they  receive  the  in- 
terest. If  the  state  may  assess  the  tax  upon  the  face  value  of  the 
bonds,  notice  in  pais  is  not  necessary.  We  think  that  there  is  nothing 
in  this  objection  which  shows  any  infraction  of  the  federal  Constitu- 
tion. It  is  urged  that  it  is  a  taking  of  the  bondholder's  property  with- 
out due  process  of  law.  We  must  confess  that  we  cannot  see  it  in  this 
light.  The  process  of  taxation  does  not  require  the  same  kind  of  no- 
tice as  is  required  in  a  suit  at  law,  or  even  in  proceedings  for  taking  ' 
private  property  under  the  power  of  eminent  domain.  It  involves  no 
violation  of  due  process  of  law  when  it  is  executed  according  to  cus- 
tomary forms  and  established  usages,  or  in  subordination  to  the  prin- 
ciples which  underlie  them.  We  see  nothing  in  the  process  of  taxation 
complained  of  which  is  obnoxious  to  constitutional  objection  on  this 
score.  Stockholders  in  the  national  banks  are  taxed  in  this  way,  and 
the  method  has  been  sustained  by  the  express  decision  of  this  court. 
Bank  v.  Com.,  9  Wall.  353,  19  L.  Ed.  701.     *     *     * 


Ch.  4)  NOTICE.  117 


HAGAR  V.  RECLAMATION  DIST.  NO.  108. 

(Supreme  Court  of  United  States,  1884.     Ill  U.  S.  701,  4  Sup.  Ct.  663,  28 
L.  Ed.  560.) 

Appeals  from  the  United  States  Circuit  Court  for  the  District  of 
CaHfornia. 

FiKLD,  J. 2     By  an  act  of  the  Legislature  of  California,  passed  in 
1868,  a  general  system  was  established  for  reclaiming  swamp  and  over- 
flowed salt  marsh  and  tide  lands  in  the  state,  of  which  there  is  a  large 
j  quantity,  and  thus  fitting  them  for  cultivation.     It  will  be  sufficient  for 
I  the  purposes  of  this  suit  to  state  the  general  features  of  the  system 
I  without  going  much  into  detail.     It  provides  for  the  formation  of  rec- 
I  lamation  districts  where  lands  of  the  kind  stated  are  susceptible  of  one 
:  mode  of  reclamation;    such  districts  to  be  established  by  the  board  of 
I  supervisors  of  the  county  in  which  the  lands,  or  the  greater  part  of 
(  them,  are  situated,  upon  the  petition  of  one-half  or  more  of  the  holders 
[  thereof.     The  petition  being  granted,  the  petitioners  are  required  to 
}  establish  such  by-laws  as  they  may  deem  necessary  for  the  work  of 
reclamation,  and  to  keep  the  same  in  repair ;   and  to  elect  three  of  their 
number  to  act  as  a  board  of  trustees  to  manage  the  same.    This  board 
is  empowered  to  employ  engineers  and  others  to  survey,  plan,  and  es- 
timate the  cost  of  the  work,  and  of  land  needed  for  right  of  way,  in- 
j  eluding  drains,  canals,  sluices,  watergates,  embankments,  and  material 
j  for  construction;    and  to  construct,  maintain,  and  keep  in  repair  all 
'  works  necessary  for  the  object  in  view.    The  trustees  are  required  to 
report  to  the  board  of  supervisors  of  the  county,  or,  if  the  district  be  in 
more  than  one  county,  to  the  board  of  supervisors  in  each  county, 
the  plans  of  the  work  and  estimates  of  the  cost,  together  with  estimates 
of  the  incidental  expenses  of  superintendence  and  repairs.    The  super- 
visors are  then  to  appoint  three  commissioners,  who  are  jointly  to 
view  and  assess  upon  each  acre  to  be  reclaimed  or  benefited  a  tax  pro- 
portionate to  the  whole  expense,  and  to  the  benefits  which  will  result 
from  the  works ;   which  tax  is  to  be  collected  and  paid  into  the  county 
treasury  or  treasuries,  as  the  case  may  be,  and  placed  to  the  credit  of 
the  district,  to  be  paid  out  for  the  work  of  reclamation,  upon  the  order 
of  the  trustees,  when  approved  by  the  board  of  supervisors  of  the  coun- 
ty.   If  the  district  be  in  more  than  one  county,  the  tax. is  to  be  paid  into 
the  treasury  of  the  county  in  which  the  land  assessed  is  situated.     If 
the  original  assessment  be  insufficient  for  the  complete  reclamation  of 
the  lands,  or  if   further  assessments  be  required   for  the  protection, 
maintenance,  and  repair  of  the  works,  the  supervisors  may  order  ad- 
ditional assessments  upon  presentation  by  the  trustees  of  a  statement  of 
the  work  to  be  done,  and  an  estimate  of  its  cost,  such  assessments  to 
be  levied,  and,  if  delinquent,  collected,  in  the  same  manner  as  the  orig- 
inal assessment.    The  commissioners  are  required  to  make  a  list  of  the 

2  Only  a  portion  of  the  opinion  is  printed. 


118  ADMIXISTUATIVE   POWER   AND   ACTION.  (Part    1 

amounts  clue  from  each  owner  o'f  land  in  the  district,  and  of  the 
amount  assessed  against  the  unsold  land,  and  file  the  same  with  the 
treasurer  of  the  county  in  which  the  lands  are  situated.  The  lists  thus 
prepared  are  to  remain  in  the  office  of  the  treasurer  for  30  days  or 
longer,  if  so  ordered  by  the  trustees,  during  which  time  any  person 
can  pay  to  the  treasurer  the  amount  assessed  against  his  land ;  but  if, 
at  the  end  of  the  30  days,  or  the  extended  time,  the  tax  has  not  been 
paid,  the  treasurer  is  to  transmit  the  list  to  the  district  attorney,  who 
is  to  proceed  at  once  against  the  delinquents  in  the  manner  provided  by 
law  for  the  collection  of  state  and  county  taxes. 

The  Political  Code  of  the  state,  which  went  into  effect  on  the  1st  of 
January,  1873,  embraces  substantially  the  provisions  of  the  act  of  1868. 
The  changes  are  more  in  language  than  in  substance.  So  far  as  sub- 
sequent proceedings  are  concerned,  the  Code  prescribes  the  rule.  The 
reclamation  district  No.  108,  the  plaintiff  in  the  court  below,  was  es- 
tablished in  September,  1870,  under  the  act  of  1868.  It  embraces  over 
74,000  acres  of  land,  situated  in  the  counties  of  Yolo  and  Colusa,  and 
forming  a  compact  body  susceptible  of  one  mode  of  reclamation.  The 
trustees  of  the  district  originally  estimated  the  cost  of  the  reclamation 
works,  including  incidental  expenses,  at  $140,000,  and  the  commission- 
ers appointed  assessed  that  sum  upon  the  lands  in  the  district.  The 
amount  proved  to  be  insufficient  to  complete  the  works,  and,  upon 
the  report  of  the  trustees  that  the  further  sum  of  $192,000  was  re- 
quired for  that  purpose,  the  supervisors  ordered  that  amount  to  be 
assessed,  and  the  commissioners  appointed  by  them  levied  the  assess- 
ment upon  the  lands.  This  assessment  became  delinquent,  and  the 
present  suits  were  brought  to  obtain  a  decree  that  the  several  amounts 
charged  upon  the  lands  of  the  appellant  are  liens  upon  them,  and  for 
their  sale  to  satisfy  the  charges.  One  of  the  suits  is  to  enforce  the 
lien  on  the  lands  in  Yolo  county,  and  the  other  the  liens  on  the  lands 
in  Colusa  county.  On  his  motion  they  were  both  removed  to  the  cir- 
cuit court  of  the  United  States.  That  court  held  in  each  case  that  the 
several  sums  assessed  were  valid  liens  upon  the  lands  of  the  appellant 
on  which  they  were  levied,  and  ordered  that  the  lands  be  sold  for  the 
payment  of  the  amounts,  with  interest  and  costs.  From  these  decrees 
the  appeals  are  taken.     *     *     * 

The  appellant  contends  that  this  fundamental  principle^  was  violated 
in  the  assessment  of  his  property,  inasmuch  as  it  was  made  without 
notice  to  him,  or  without  his  being  afforded  any  opportunity  to  be 
heard  respecting  it;  the  law  authorizing  it  containing  no  provision 
for  such  notice  or  hearing.  His  contention  is  that  notice  and  oppor- 
tunity to  be  heard  are  essential  to  render  any  proceeding  due  process 
of  law  which  may  lead  to  the  deprivation  of  life,  liberty,  or  property. 

3  I.  e.,  that  there  can  be  no  proceeding  against  life,  liberty,  or  property, 
which  may  result  in  the  deprivation  of  either,  without  the  observance  of 
those  general  rules  established  in  our  system  of  jurisprudence  for  the  securi- 
ty or  private  rights. 


Ch.  4)  NOTICE.  119 

Undoubtedly  where  life  and  liberty  are  involved,  due  process  requires 
that  there  be  a  regular  course  of  judicial  proceedings,  which  imply 
that  the  party  to  be  affected  shall  have  notice  and  an  opportunity  to 
be  heard;  so,  also,  where  title  or  possession  of  property  is  involved. 
But  where  the  taking  of  property  is  in  the  enforcement  of  a  tax,  the 
proceeding  is  necessarily  less  formal,  and  whether  notice  to  him  is  at 
all  necessary  may  depend  upon  the  character  of  the  tax,  and  the  man- 
ner in  which  its  amount  is  determinable.  The  necessity  of  revenue 
for  the  support  of  the  government  does  not  admit  of  the  delay  attend- 
ant upon  proceedings  in  a  court  of  justice,  and  they  are  not  required 
for  the  enforcement  of  taxes  or  assessments.  As  stated  by  Mr.  Jus- 
tice Bradley,  in  his  concurring  opinion  in  Davidson  v.  New  Orleans 
[96  U.  S.  97,  24  L.  Ed.  616]  :  "In  judging  what  is  'due  process  of 
law'  respect  must  be  had  to  the  cause  and  object  of  the  taking,  whether 
under  the  taxing  power,  the  power  of  eminent  domain,  or  the  power 
of  assessment  for  local  improvements,  or  some  of  these ;  and,  if 
found  to  be  suitable  or  admissible  in  the  special  case,  it  will  be  ad- 
judged to  be  'due  process  of  law,'  but  if  found  to  be  arbitrary,  op- 
pressive, and  unjust,  it  may  be  declared  to  be  not  'due  process  of  law.'  " 

The  power  of  taxation  possessed  by  the  state  may  be  exercised  Upon 
any  subject  within  its  jurisdiction,  and  to  any  extent  not  prohibited 
by  the  Constitution  of  the  United  States.  As  said  by  this  court :  "It 
may  touch  property  in  every  shape,  in  its  natural  condition,  in  its 
manufactured  form,  and  in  its  various  transmutations.  And  the 
amount  of  the  taxation  may  be  determined  by  the  value  of  the  prop- 
erty, or  its  use,  or  its  capacity,  or  its  productiveness.  It  may  touch 
business  in  the  almost  infinite  forms  in  which  it  is  conducted,  in  pro- 
fessions, in  commerce,  in  manufactures,  and  in  transportation.  Un- 
less restrained  by  provisions  of  the  federal  Constitution,  the  power 
of  the  state,  as  to  the  mode,  form,  and  extent  of  taxation,  is  unlimited 
where  the  subjects  to  which  it  applies  are  within  her  jurisdiction." 
State  Tax  on  Foreign-Held  Bonds,  lo  Wall.  319,  21  L.  Ed.  179. 

Of  the  different  kinds  of  taxes  which  the  state  may  impose,  there 
is  a  vast  number  of  which,  from  their  nature,  no  notice  can  be  given 
to  the  taxpayer,  nor  would  notice  be  of  any  possible  advantage  to  him, 
such  as  poll  taxes,  license  taxes  (not  dependent  upon  the  extent  of  his 
business),  and,  generally,  specific  taxes  on  things  or  persons  or  occupa- 
tions. In  such  cases  the  Legislature  in  authorizing  the  tax  fixes  its 
amount,  and  that  is  the  end  of  the  matter.  If  the  tax  be  not  paid  the 
property  of  the  delinquent  may  be  sold,  and  he  be  thus  deprived  of  his 
property.  Yet  there  can  be  no  question  that  the  proceeding  is  due  pro- 
cess of  law,  as  there  is  no  inquiry  into  the  weight  of  evidence,  or 
other  element  of  a  judicial  nature,  and  nothing  could  be  changed  by 
hearing  the  taxpayer.  No  right  of  his  is  therefore  invaded.  Thus,  if 
the  tax  on  animals  be  a  fixed  sum  per  head,  or  on  articles  a  fixed  sum 
per  yard  or  bushel  or  gallon,  there  is  nothing  the  owner  can  do  which 
can  afifect  the  amount  to  be  collected  from  him.    So,  if  a  person  wL 


120  ADMINISTRATIVE   TOWER   AND   ACTION.  {Part    1 

a  license  to  do  business  of  a  particular  kind,  or  at  a  particular  place, 
such  as  keeping  a  hotel  or  a  restaurant,  or  selling  liquors  or  cigars 
or  clothes,  he  has  only  to  pay  the  amount  required  by  the  law  and 
go  into  the  business.  There  is  no  need  in  such  cases  for  notice  or 
hearing.  So,  also,  if  taxes  are  imposed  in  the  shape  of  licenses  for 
privileges,  such  as  those  on  foreign  corporations  for  doing  business 
in  the  state,  or  on  domestic  corporations  for  franchises,  if  the  parties 
desire  the  privilege  they  have  only  to  pay  the  amount  required.  In 
such  cases  there  is  no  necessity  for  notice  or  hearmg.  The  amount 
of  the  tax  would  not  be  changed  by  it. 

But  where  a  tax  is  levied  on  property  not  specifically,  but  according 
to  its  value,  to  be  ascertained  by  assessors  appointed  for  that  purpose, 
upon  such  evidence  as  they  may  obtain,  a  different  principle  comes  in. 
The  officers  in  estimating  the  value  act  judicially,  and  in  most  of  the 
states  provision  is  made  for  the  correction  of  errors  committed  by 
them,  through  boards  of  revision  or  equalization,  sitting  at  designated 
periods  provided  by  law,  to  hear  complaints  respecting  the  justice  of 
the  assessments.  The  law,  in  prescribing  the  time  when  such  com- 
plaints will  be  heard,  gives  all  the  notice  required,  and  the  proceeding 
by  which  the  valuation  is  determined,  though  it  may  be  followed,  if 
the  tax  be  not  paid,  by  a  sale  of  the  delinquent's  property,  is  due 
process  of  law.* 

In  some  states,  instead  of  a  board  of  revision  or  equalization,  the 
assessment  may  be  revised  by  proceedings  in  the  courts  and  be  there 
corrected  if  erroneous,  or  set  aside  if  invalid;  or  objections  to  the 
validity  or  amount  of  the  assessment  may  be  taken  when  :he  attempt 
is  made  to  enforce  it.  In  such  cases  all  the  opportunity  is  given  to  the 
taxpayer  to  be  heard  respecting  the  assessment  which  can  be  deemed 
essential  to  render  the  proceedings  due  process  of  law. 

In  Davidson  v.  New  Orleans,  this  court  decided  this  precise  point. 
In  that  case  an  assessment  levied  on  certain  real  property  in  New  Or- 
leans for  draining  the  swamps  of  that  city  was  resisted  on  the  ground 
that  the  proceeding  deprived  the  owners  of  their  property  without  due 
process  of  law,  but  the  court  refused  to  interfere,  for  the  reason  that 
the  owners  of  the  property  had  notice  of  the  assessment  and  an  op- 
portunity to  contest  it  in  the  courts.  After  stating  that  much  misap- 
prehension prevailed  as  to  the  meaning  of  the  terms  "due  process  of 
law,"  and  that  it  would  be  difficult  to  give  a  definition  that  would  be 

4  That  the  duties  of  assessors  in  estimating?  the  value  of  property  for  pur- 
poses of  general  taxation  are  judicial,  see  Barhyte  v.  Shepherd,' 35  N.  Y. 
238,  250  (1866)  ;  Hassan  v.  Rochester.  67  N.  Y.  r)28,  536  (1876);  Stuart  v. 
Palmer,  74  N.  Y.  183,  30  Am.  Rep.  289  (1878) ;  Williams  v.  Weaver,  75  N. 
Y.  30,  as  (1878):  Cooley,  Tax'n,  266;  Burroughs,  Tax'n,  §  102;  Jordan  v. 
Hyatt,  3  Barh.  (N.  Y.)  275,  283  (1848)  ;  Ireland  v.  Rochester,  51  Barb. 
(N.  Y.)  416,  430,  431  (1868);  State  v.  Jersey  Oity,  24  N.  J.  Law,  662,  666 
(18.J5);  State  v.  Morristown,  34  N.  J.  Law.  445  (1871);  Griffin  v.  Mixon, 
38  Miss.  437,  438  (1860),  note  to  official  report  of  case. 


Ch.  4)  NOTICE.  121 

at  once  perspicuous  and  satisfactory,  the  court,  speaking  by  Mr,  Jus- 
tice Miller,  said  that  it  would  lay  down  the  following  proposition  as 
applicable  to  the  case:  "That  whenever  by  the  laws  of  a  state,  or  by 
state  authority,  a  tax,  assessment,  servitude,  or  other  burden  is  im- 
posed upon  property  for  the  public  use,  whether  it  be  for  the  whole 
state  or  of  some  more  limited  portion  of  the  community,  and  those 
laws  provide  for  a  mode  of  confirming  or  contesting  the  charge  thus 
imposed  in  the  ordinary  courts  of  justice,  with  such  notice  to  the  per- 
son, or  such  proceeding  in  regard  to  the  property  as  is  appropriate  to 
the  nature  of  the  case,  the  judgment  in  such  proceedings  cannot  be 
said  to  deprive  the  owner  of  his  property  without  due  process  of  law, 
however  obnoxious  it  may  be  to  other  objections."  96  U.  S.  97,'2-i 
L.  Ed.  616. 

This  decision  covers  the  cases  at  bar.  The  assessment  under  consid- 
eration could,  by  the  law  of  California,  be  enforced  only  by  legal  pro- 
ceedings, and  in  them  any  defense  going  either  to  its  validity  or 
amount  could  be  pleaded.  In  ordinary  taxation  assessments,  if  not 
altered  by  a  board  of  revision  or  of  equalization,  stand  good,  and  the 
tax  levied  may  be  collected  by  a  sale  of  the  delinquent's  property ;  but 
assessments  in  California,  for  the  purpose  of  reclaiming  overflowed 
and  swamp  lands,  can  be  enforced  only  by  suits,  and,  of  course,  to 
their  validity  it  is  essential  that  notice  be  given  to  the  tax-payer,  and 
opportunity  be  afforded  him  to  be  heard  respecting  the  assessment. 
In  them  he  may  set  forth,  by  way  of  defense,  all  his  grievances.  Re- 
clamation Dist.  No.  108  V.  Evans,  61  Cal.  104.  If  property  taken  upon 
an  assessment,  which  can  only  be  enforced  in  this  way,  be  not  taken 
by  due  process  of  law,  then,  as  said  by  Mr.  Justice  ]\Iiller  in  the  New 
Orleans  Case,  these  words  as  used  in  the  constitution,  can  have  no 
definite  meaning.  The  numerous  decisions  cited  by  counsel,  some 
of  which  are  given  in  the  note,  as  to  the  necessity  of  notice  and  of  an 
opportunity  of  being  heard,  are  all  satisfied  where  a  hearing  in  court 
is  thus  allowed.^     *     *     * 


sOvering  v.  Foote.  6.5  N.  T.  269  (1875);  Stuart  v.  Palmer.  74  N.  Y.  183 
30  Am.  Rep.  289  (1878);  Cooley,  Tax'n,  265,  206,  298;  Thomas  v.  Gain,  35 
Mich.  155,  164,  24  Am.  Rep.  535  (1876);  .Tordan  v.  Hvatt.  3  Barb.  (N.  Y.) 
275,  283  (1848)  ;  Wheeler  v.  Mills.  40  Barb.  (N.  Y.)  646  (1863)  ;  Ireland  v. 
Rochester,  51  Barb.  (N.  Y.)  416,  430,  431  (1868)  :  State  v.  Jersey  Citv,  24 
N.  J.  Law,  062,  666  (1855)  ;  State  v.  Newark,  31  N.  J.  Law.  Stis  (1865); 
State  V.  Trenton,  36  N.  J.  Law,  499,  504  (1873);  State  v,  Elizabeth  Citv,  37 
N,  J.  Law,  357  (1875);  State  v.  Plainfleld.  38  N.  J.  Law,  97  (1875);  State 
V.  Newark.  25  N.  J,  Law,  399,  411,  420  (1850)  ;  Patten  v.  Green,  13  Cal,  325 
(1859):  Mulligan  v.  Smith,  59  Cal.  200  (1881);  Griffin  v,  Mixon,  38  Miss. 
438  (1860);  County  of  San  Mateo  v.  Southern  Pae.  R.  Co.  (C.  C.)  8  Sawv. 
238,  13  Fed.  722  (1882)  ;  County  of  Santa  Clara  v.  Same  (C.  C)  9  Sawv. 
165,  18  Fed.  385  (1883);  Darling  v.  Gunn,  50  111.  424  (1869).  See,  also. 
Gatch  V.  City  of  Des  Moines,  63  Iowa,  718,  18  N.  W.  310.  311,  313  (1884); 
Fallbrook  Irrigation  District  v.  Bradley,  1(>4  U.  S.  112,  17  Sup.  Ct.  56,  41 
L.  Ed.  369  (1896),  note  to  official  report  of  case. 

The  leading  case  on  the  requirement  of  notice  is  Stuart  v.  Palmer,  74  N. 


122  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 


PITTSBURGH,  C.  C.  &  ST.  L.  RY.  CO.  v.  BACKUS. 

(Supreme  Court  of  United  States,  1894.     154  U.  S.  421,  14  Sup.  Ct.  1114, 
38  L.  Ed.  1031.) 

In  Error  to  the  Supreme  Court  of  the  State  of  Indiana. 

Action  to  restrain  the  collection  of  taxes.  The  court  rendered  judg- 
ment for  defendants,  which,  on  appeal,  was  affirmed  by  the  Supreme 
Court  of  the  state.     133  Ind.  625,  33  N.  E.  433. 

Mr.  Justice  Brewer   delivered  the  opinion  of  the  court.^     *     *     * 

It  is  contended  specifically  that  the  act  fails  of  due  process  of  law 
respecting  the  assessment,  in  that  it  does  not  require  notice  by  the 
state  board  at  any  time  before  the  assessments  are  made  final;  and 
several  authorities  are  cited  in  support  of  the  proposition  that  it  is 
essential  to  the  validity  of  any  proceeding-  by  which  the  property 
of  the  individual  is  taken  that  notice  must  be  given  at  some  time  and 
in  some  form  before  the  final  adjudication.  But  the  difficulty  with 
this  argument  is  that  it  has  no  foundation  in  fact.  The  statute  names 
the  time  and  place  for  the  meeting  of  the  assessing  board,  and  that 
is  sufficient  in  tax  proceedings ;  personal  notice  is  unnecessary. 

In  State  Railroad  Tax  Cases,  92  U.  S.  610,  23  L.  Ed.  663,  are  these 
words,  which  are  also  quoted  with  approval  in  the  Kentucky  Railroad 
Tax  Cases,  115  U.  S.  321,  6  Sup.  Ct.  57,  29  L.  Ed.  414:  "This  board 
has  its  time  of  sitting  fixed  by  law.  Its  sessions  are  not  secret.  No 
obstruction  exists  to  the  appearance  of  any  one  before  it  to  assert  a 
right,  or  redress  a  wrong ;  and,  in  the  business  of  assessing  taxes,  this 
is  all  that  can  be  reasonably  asked." 

Again,  it  is  said  that  the  act  does  not  require  the  state  board  to 
grant  to  the  railroad  companies  any  hearing  or  opportunity  to  be  heard 
for  the  correction  of  errors  at  any  time  after  the  assessments  have 
been  agreed  upon  by  the  board,  and  before  they  are  made  final  and 
absolute,  or  before  the  final  adjournment  of  the  board,  and  also  that 
it  gives  to  the  board  arbitrary  power  to  deny  to  plaintiffs  any  hear- 
ing at  any  time ;  but  the  fact  and  the  law  are  both  against  this  con- 
tention. The  plaintiff  did  appear  before  the  board,  and  was  heard, 
by  its  counsel  and  through  its  officers;    and  the  construction  placed 

Y.  183,  .30  Am.  Rep.  289  (1878).  See,  also.  Central  of  Georgia  Ry.  v.  Wright, 
207  U.  S.  127.  28  Sup.  Ct.  47,  52  L.  Ed.  134   (1907). 

As  to  notice  before  distraining  goods  for  nonpayment  of  taxes,  see  Cooley, 
Taxation,  pp.  441-443. 

Notice  l)efore  tlie  assessment  is  not  necessary,  if  there  is  an  opportunity 
to  contest  the  assessment  before  the  board  of  review.  Felsenthal  v.  John- 
son, 104  111.  21   (1882). 

See,  also,  Corcoran  v.  Board  of  Aldermen  of  Cambridge,  199  Mass.  5,  85 
N.  E.  1.55.  18  L.  R.  A.  (N.  S.)  187  (1908)  :  "If  the  right  to  a  hearing  is 
given  upon  an  appeal,  or  upon  an  application  for  an  abatement,  it  is  suffi- 
cient." 

6  Only  a  portion  of  this  case  is  printed. 


Ch.  4)  NOTICE.  123 

by  the  Supreme  Court  of  the  state  on  the  act — a  construction  which  is 
conclusive  upon  this  court — is  that  the  railroad  companies  are  given 
the  right  to  be  present  and  to  be  heard. 

It  is  urged  that  the  valuation  as  fixed  was  not  announced  until 
shortly  before  the  adjournment  of  the  board,  and  that  no  notice  was 
given  of  such  valuation  in  time  to  take  any  steps  for  the  correction 
of  errors  therein.  If  by  this  we  are  to  understand  counsel  as  claim- 
ing that  there  must  be  notice  and  a  hearing  after  the  determination 
by  the  assessing  board,  as  well  as  before,  we  are  unable  to  concur  with 
that  view.  A  hearing  before  judgment,  with  full  opportunity  to  present 
all  the  evidence  and  the  arguments  which  the  party  deems  important, 
is  all  that  can  be  adjudged  vital.  Rehearings,  and  new  trials,  are  not  es- 
sential to  due  process  of  law,  either  in  judicial  or  administrative  pro- 
ceedings. One  hearing,  if  ample,  before  judgment,  satisfies  the  demand 
of  the  constitution  in  this  respect.  It  not  infrequently  happens  in  this 
as  in  all  other  courts  that  decisions  are  announced  and  judgments  en- 
tered on  the  last  day  of  the  term,  and  too  late  for  the  presentation  or 
consideration  of  any  petitions  for  rehearing  or  motions  for  a  new  trial. 
Will  any  one  seriously  contend  that  a  judgment  thus  entered  is  entered 
in  defiance  of  the  requirements  of  due  process  of  law,  and  that  a  party, 
having  been  fully  heard  once  upon  the  merits  of  his  case,  is  deprived 
of  the  constitutional  protection  because  he  is  not  heard  a  second  time? 

Equally  fallacious  is  the  contention  that  because  to  the  ordinary 
taxpayer  there  is  allowed  not  merely  one  hearing  before  the  county 
officials,  but  also  a  right  of  appeal  with  a  second  hearing  before  the 
state  board,  while  only  the  one  hearing  before  the  latter  board  is  given 
to  railroad  companies  in  respect  to  their  property,  therefore  the  latter 
are  denied  the  equal  protection  of  the  laws.  If  a  single  hearing  is 
not  due  process,  doubling  it  will  not  make  it  so ;  and  the  power  of  a 
state  to  make  classifications  in  judicial  or  administrative  proceedings 
carries  with  it  the  right  to  make  such  a  classification  as  will  give  to 
parties  belonging  to  one  class  two  hearings  before  their  rights  are 
finally  determined,  and  to  parties  belonging  to  a  different  class  only 
a  single  hearing.  Prior  to  the  passage  of  the  court  of  appeals  act  by 
Congress,  in  1891,  a  litigant  in  the  Circuit  Court,  if  the  amount  in  dis- 
pute was  less  than  $."),000,  was  given  but  a  single  trial,  and  in  that 
court ;  while,  if  the  amount  in  dispute  was  over  that  sum,  the  defeated 
party  had  a  right  to  a  second  hearing  and  in  this  court.  Did  it  ever 
enter  into  the  thought  of  any  one  that  such  classification  carried  with 
it  any  denial  of  due  process  of  law?     *     *     * 


124  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

STATE  RAILROAD  TAX  CASES. 

(Supreme  Court  of  Ujaited  States,  1873.     1)2  U.  S.  .57.j,  23  L.  Ed.  GG3.) 

Miller,  J.'^  *  *  *  There  is,  however,  an  objection  urged  to  the 
conduct  of  the  board  of  equaHzation,  resting  on  the  action  of  the  board 
in  these  particular  cases,  in  which  they  are  charged  with  a  gross  vio- 
lation of  the  law  to  the  prejudice  of  the  corporations,  which  we  will 
consider. 

The  statute  requires  the  proper  officers  of  the  railroad  companies  to 
furnish  to  the  State  Auditor  a  schedule  of  the  various  elements  already 
mentioned  as  necessary  in  applying  the  statutory  rule  of  valuation. 
It  is  charged  that  the  board  of  equalization  increased  the  estimates 
of  value  so  reported  to  the  Auditor,  without  notice  to  the  companies, 
and  without  sufficient  evidence  that  it  ought  to  be  done ;  and  it  is  stren- 
uously urged  upon  us  that  for  want  of  this  notice  the  whole  assessment 
of  the  property  and  levy  of  taxes  is  void. 

It  is  hard  to  believe  that  such  a  proposition  can  be  seriously  made. 
If  the  increased  valuation  of  property  by  the  board  without  notice  is 
void  as  to  the  railroad  companies,  it  must  be  equally  void  as  to  every 
other  owner  of  property  in  the  state,  when  the  value  assessed  upon 
it  by  the  local  assessor  has  been  increased  by  the  board  of  equaliza- 
tion. How  much  tax  would  thus  be  rendered  void  it  is  impossible  to 
say.  The  main  function  of  this  board  is  to  equalize  these  assessments 
over  the  whole  state.  If  they  find  that  a  county  has  had  its  property] 
assessed  too  high  in  reference  to  the  general  standard,  they  may  re- 
duce its  valuation;  if  it  has  been  fixed  too  low,  they  raise  it  to  that] 
standard.  When  they  raise  it  in  any  county,  they  necessarily  raise] 
it  on  the  property  of  every  individual  who  owns  any  in  that  county. 
Must  each  one  of  these  have  notice  and  a  separate  hearing?  If  a  rail-j 
road  company  is  by  law  entitled  to  such  notice,  surely  every  individual] 
is  equally  entitled  to  it.  Yet  if  this  be  so,  the  expense  of  giving  notice, 
the  delay  of  hearing  each  individual,  would  render  the  exercise  of| 
the  main  function  of  this  board  impossible.  The  very  moment  you 
come  to  apply  to  the  individual  the  right  claimed  by  the  corporation' 
in  this  case,  its  absurdity  is  apparent.  Nor  is  there  any  hardship  inj 
the  matter.  This  board  has  its  time  of  sitting  fixed  by  law.  Its  ses- 
sions are  not  secret.  No  obstruction  exists  to  the  appearance  of  any] 
one  before  it  to  assert  a  right,  or  redress  a  wrong ;  and,  in  the  business  ' 
of  assessing  taxes,  this  is  all  that  can  be  reasonably  asked. 

As  we  do  not  know  on  what  evidence  the  board  acted  in  regard] 
to  these  railroads,  or  whether  they  did  not  act  on  knowledge  which 
they  possessed  themselves,  and  as  all  valuation  of  property  is  more 
or  less  matter  of  opinion,  we  see  no  reason  why  the  opinion  of  this] 

1  Only  a  portion  of  the  opinion  of  Mr.  .Justice  Miller  is  printed. 


Ch.  4)  NOTICE.  ■  125 

court,  or  of  the  Circuit  Court,  should  be  better,  or  should  be  sub- 
stituted for  that  of  the  board,  whose  opinion  the  law  has  declared  to 
be  the  one  to  govern  in  the  matter.     **=;=» 


KUNTZ  V.  SUMPTION. 

(Supreme  Court  of  Indiana,  1889.     117  Ind.  1,  19  N.  E.  474,  2  L.  R.  A.  Goo.l 

Appeal  from  circuit  court,  Randolph  county. 

Elliott,  C.  J.  The  board  of  equalization  of  Randolph  county  en- 
tered an  order  reading  thus :  "On  motion,  the  board  increased  the  as- 
sessment of  Peter  Kuntz  on  personal  property  twenty  thousand  dol- 
lars." Prior  to  the  meeting  of  the  board  Kuntz  had  listed  his  prop- 
erty for  taxation.  He  was  subpoenaed  before  the  board,  and  testified 
as  a  witness,  but  did  so  under  protest. 

We  have  given  to  the  principal  question  in  this  case  much  and  care- 
ful study,  and  we  are  compelled  to  hold  that  the  statutory  provisions 
concerning  the  authority  of  the  county  board  of  equalization  to  in- 
crease the  valuation  of  the  property  of  an  individual  taxpayer  listed 
by  him  for  taxation  are  unconstitutional.  We  limit  our  decision  to 
this  point,  and  mark  the  limit  as  distinctly  and  definitely  as  we  can. 
We  do  not  affirm  that  the  provisions  of  the  statute  conferring  authori- 
ty upon  the  county  board  to  change  the  general  levy  are  invalid,  nor 
do  we  affirm  that  they  are  invalid  in  so  far  as  they  confer  authority 
to  make  orders  affecting  the  taxpayers  generally.  We  do,  however, 
affirm  that  they  are  invalid  in  so  far  as  they  assume  to  confer  au- 
thority upon  the  board  to  conclusively  change  the  valuation  placed 
upon  property  by  an  individual  taxpayer,  or  to  add  property  to  his  list. 
We  are  satisfied  that  the  statute  is  in  conflict  with  the  Constitution, 
for  the  reason  that  it  assumes  to  confer  authority  upon  the  board  to 
add  to  a  citizen's  taxes  without  giving  him  an  opportunity  to  be  heard, 
and  thus  denies  him  due  process  of  law. 

Our  judgment  is  that  after  a  citizen  has  listed  his  property  no  change 
in  the  list  can  be  compulsorily  made  by  an  officer  or  tribunal  whose  de- 
cision is  final,  until,  by  due  process  of  law,  he  has  had  an  opportunity 
to  vindicate  the  correctness  of  his  list,  or  resist  an  attempt  to  increase 
the  valuation.  The  presumption  is  that  men  obey  the  law  and  act  in 
good  faith,  and  under  this  long-settled  rule  it  must  be  held  that,  until 
the  contrary  is  shown,  the  taxpayer  is  entitled  to  have  his  list  accepted 
as  correct  and  just.     The  contrary  cannot  be  legally  and  conclusively 

8  See  Illinois  Revenue  Law  1898,  §  35 :  "*  *  *  The  assessment  of  any 
class  of  property,  or  of  any  township  or  part  thereof,  or  any  portion  of  the 
county,  shall  not  be  Increased  until  the  board  shall  have  notified  not  less 
than  fifty  of  the  owners  of  property  in  such  township,  or  part  thereof,  or 
portion  of  the  county  of  such  proposed  Increase,  and  given  them,  or  any  one 
representing  them,  or  other  citizens  of  said  territory,  an  opportunity  to  be 
heard." 


126  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

shown,  unless  he  has  an  opportunity  to  be  heard,  and  this  opportunity 
he  cannot  have  unless  notice  is  given  him  before  a  conclusive  decision 
is  made.  The  statute  does  not  provide  for  notice  to  taxpayers  whose 
taxes  it  is  proposed  to  increase,  and  this  infirmity  destroys  it  in  so  far 
as  it  affects  such  citizens.  It  is  not  enough  that  in  fact  the  taxpayer 
does  have  some  notice  or  information,  for  the  law  must  provide  for 
notice,  or  else  no  legal  notice  can  be  given.  A  man  may  be  sub- 
poenaed as  a  witness  in  an  action  pending  against  him,  but  unless  he 
is  summoned  or  notified  as  a  party  under  some  law  authorizing  a 
summons  or  a  notice  the  proceedings  are  utterly  void.  A  man  may 
be  served  with  a  written  notice  that  a  petition  for  a  ditch  is  pending, 
but,  if  there  is  no  law  authorizing  notice,  it  will  be  unavailing.  A  no- 
tice not  authorized  by  law  is  in  legal  contemplation  no  notice.  We  do 
not  assert  that  the  proceedings  would  be  void  where  there  is  some 
notice,  although  not  given  in  strict  conformity  to  law ;  for  we  know 
that  a  defective  notice,  assumed  to  be  given  under  a  statute,  will  be 
sufficient  to  uphold  jurisdiction  as  against  a  collateral  attack.  Mont- 
gomery V.  Wasem,  IIG  Ind.  343,  15  N.  E.  795  (this  term) ;  Hume  v. 
Conduitt,  76  Ind.  598. 

But  there  must  be  an  assumption  of  the  right  to  give  notice,  and 
there  must  be  some  law  authorizing  this  assumption.  At  all  events, 
there  must  be  color  of  right,  and  without  a  law  authorizing  notice 
there  can  be  none.  We  approve,  as  fully  as  language  can  do,  the  doc- 
trine of  former  decisions,  that  the  legislature  has  ample  authority  to 
prescribe  what  the  notice  shall  be.  Johnson  v.  Lewis,  115  Ind.  490, 
18  N.  E.  7;  Garvin  v.  Daussman,  114  Ind.  429,  IG  N.  E.  826,  5  Am. 
St.  Rep.  637;  Carr  v.  State,  103  Ind.  548,  3  N.  E.  375;  Hobbs  v. 
Board,  103  Ind.  575,  3  N.  E.  263. 

We  affirm,  too,  that  whether  the  notice  is  by  publication  or  by  per- 
sonal service,  it  will  sustain  jurisdiction,  provided  there  is  back  of  it 
some  law  providing  for  notice.  While  afifirming  these  various  propo- 
sitions, we  also  affirm  that,  where  individual  property  rights  are  affect- 
ed, there  must  be  provision  for  notice  made  by  law  before  there  can 
be  a  final  and  conclusive  adjudication.  Only  the  law  can  prescribe 
the  form  of  the  notice,  and  the  law  must  provide  for  it.  Where,  there- 
fore, individual  rights  are  concerned,  and  the  matter  is  one  upon 
which  a  party  is  entitled  to  be  heard,  a  proceeding  conclusi-^'ely  and 
finally  disposing  of  individual  property  rights  will  be  void,  unless 
founded  upon  a  law  providing  for  notice  of  some  kind.^     Where  the 

9  That  the  requirement  of  notice  will  be  implied,  see  ITarlow  v.  Tike.  3 
Txiwnl.  CMe.)  438  (1S25)  ;  also  Corcoran  v.  Board  of  Aldermen  of  Cam- 
bridge. 199  Mass.  5,  85  N.  E.  155,  18  L.  R.  A.  (N.  S.)  187  (1908).  ^Moreover, 
see  Detroit,  etc.,  Ry.  Co.  v.  Osbom,  189  U.  S.  383,  391,  23  Sup.  Ot.  540,  543, 
47  L.  Ed.  860  (1903)  :  "The  cause  was  submitted  on  petition  and  answer,  and 
the  petition  alleged  'that  notice  Avas  given  b.v  respondent  [the  commissioner 
of  railroads]  to  relator  and  the  Union  Terminal  Association,  and  the  hear- 
ing had,  at  which  relator's  representative  objected  to  the  making  of  said  or- 
der.' It  is  therefore  not  open  to  the  plaintiff  in  error  (the  railway)  to  com- 
plain that  the  statute  did  not  provide  for  notice."    Also,  see  iiage  loG,  note. 


'   Ch.  4)  NOTICE.  127 

matter  to  be  decided  is  one  of  pure  discretion,  and  the  tribunal  decides 
I  upon  its  own  judgment,  unaided  by  evidence,  then  notice  is  not  essen- 
'  tial.  State  v.  Johnson,  105  Ind.  4G3,  5  N.  E.  553;  Fries  v.  Brier,  111 
i  Ind.  65,  11  N.  E.  958;  Trimble  v.  McGee,  112  Ind.  307,  14  N.  E.  83; 
I  Weaver  v.  Templin,  113  Ind.  298,  14  N.  E.  600. 

But  in  adding  to  property  listed  by  the  taxpayer,  or  in  increasing  the 
;  valuation  put  upon  listed  property  by  him,  a  board  of  equalization  does 
1  not  exercise  arbitrary  power  or  unrestricted  discretion.     On  the  con- 
trary, it  must  be  guided  by  the  law  and  the  facts,  and  has  no  right  to 
i  add  to  the  list  of  the  taxpayer  property  he  does  not  own,  nor  has  it  au- 
j  thority  to  increase  the  valuation  of  property  without  giving  the  tax- 
I  payer  legal  notice;    thus  affording  him  an  opportunity  to  adduce  evi- 
j  dence  or  furnish  information.     It  is  a  serious  matter  to  charge  a  per- 
son with  fraudulently  or  falsely  listing  his  property ;  and  to  add  to  his 
list,  or  to  increase  the  valuation  of  property,   imposes  upon  him   a 
burden,  for  it  deprives  him  of  property  in  the  form  of  money.     That 
notice  is  required  in  all  cases  where  individual  property  rights  are 
involved,  and  the  matter  is  not  one  of  pure  discretion,  has  been  again 
and  again  decided  by  our  own  and  other  courts.     Strosser  v.  City,  100 
Ind.  443;    Troyer  v.  Dyar,  102  Ind.  396,  1  N.  E.  728;    Jackson  v. 
State,  103  Ind.  250,  2  N.  E.  742 ;  Johnson  v.  Lewis,  115  Ind.  490,  18 
N.  E.  7 ;  Board  v.  Gruver,  115  Ind.  225,  17  N.  E.  290,  and  cases  cited. 
That  the  notice  must  be  authorized  by  law  is  affirmed  by  many  cases. 
The  rule  is  thus  stated  in  one  case :   "It  is  not  enough  that  the  owners 
may  by  chance  have  notice,  or  that  they  may  as  a  matter  of  favor  have 
a  hearing.    The  law  must  require  notice  to  them,  and  give  them  a  right 
to  a  hearing,  and  an  opportunity  to  be  heard."     Stuart  v.  Palmer,  74 
N.  Y.  188,  30  Am.  Rep.  289. 

Judge  Cooley,  in  speaking  of  the  correction  of  tax  lists,  says:  "It 
is  a  fundamental  rule  that  in  judicial  or  quasi  judicial  proceedings, 
affecting  the  rights  of  the  citizen,  he  shall  have  notice,  and  be  given 
an  opportunity  to  be  heard,  before  any  judgment,  decree,  order,  or 
demand  shall  be  given  and  established  against  him.  Tax  proceedings 
are  not  in  the  strict  sense  judicial,  but  they  are  quasi  judicial,  and,  as 
they  have  the  effect  of  a  judgment,  the  reasons  which  require  notice 
of  judicial  proceedings  are  always  present  when  the  conclusive  steps 
are  to  be  taken."  Cooley,  Tax'n  (2d  Ed.)  363.  An  author  who  has 
recently  written  on  the  subject  concludes  his  discussion  by  saying: 
"There  is  really  but  one  logical  and  consistent  position  in  the  matter, 
and  that  is  that  a  statute  that  does  not  provide  for  notice  is  invalid." 
Lewis,  Em.  Dom.  §  368.  A  very  thorough  discussion  of  the  question 
will  be  found  in  Johnson  v.  Railroad  Co.,  23  111.  202.  We  need  not, 
however,  look  beyond  our  own  reports,  for  our  own  decisions  declare 
that  the  statute  itself  must  provide  for  notice.  Campbell  v.  Dwiggins, 
83  Ind.  473;  Jackson  v.  State,  104  Ind.  516,  3  N.  E.  863;  Fries  v. 
Brier,  111  Ind.  65,  11  N.  E.  958 ;  Johnson  v.  Lewis,  supra. 

We  said  in  Jackson  v.  State,  supra,  that  "the  notice  must  assume  to 


128  ADMINISTKATIVE    I'OWEU   AND   ACTION.  (Part    1 

be  such  as  the  law  requires,  but,  in  order  to  repel  a  collateral  attack, 
it  need  not  be  a  valid  notice" ;  and  in  Garvin  v.  Daussman,  supra,  we 
said :  "It  is  without  doubt  essential  to  the  validity  of  every  law  under 
which  proceedings  may  be  had  for  the  taking  of  property,  or  to  im- 
pose a  burden  upon  it  which  may  result  in  taking  it,  that  the  law  make 
provision  for  giving  some  kind  of  notice,  at  some  stage  in  the  pro- 
ceeding." The  ultimate  conclusion  which  we  reach  is  that  where  a 
conclusive  decision  is  authorized  the  statute  itself  must  provide  for 
notice,  and  secure  it  to  the  taxpayer,  not  as  matter  of  favor,  but  as  a 
matter  of  right. 

We  agree  with  the  appellee's  counsel  that  the  board  of  equalization 
is  not  a  judicial  tribunal,  in  the  strict  sense  of  the  term;  but,  while 
this  is  true,  it  is  also  true  that  it  possesses  functions  of  a  judicial  na- 
ture. Wilkins  v.  State,  113  Ind.  514,  16  N.  E.  192.  Judicial  powers 
are,  as  we  said  in  the  case  cited,  lodged  in  the  courts ;  and,  where  the 
Constitution  distributes  the  judicial  power,  it  can  only  be  exercised 
by  the  tribunal  named  by  the  constitution,  and  constituted  as  the  Con- 
stitution provides.  Greenough  v.  Greenough,  11  Pa.  489,  51  Am.  Dec. 
567;  Chandler  v.  Nash,  5  Mich.  409  ;  Alexander  v.  Bennett,  60  N.  Y. 
.■?04;  Van  Slyke  v.  Insurance  Co.,  39  Wis.  390,  396,  20  Am.  Rep.  50; 
Gibson  v.  Emerson,  7  Ark.  172;  Gregory  v.  State,  94  Ind.  384,  48  Am. 
Rep.  162  ;   Shoultz  v.  McPheeters,  79  Ind.  373. 

But  while  we  hold  that  the  authority  of  the  board  of  equalization  is 
not  judicial,  yet  we  also  hold  that  it  is  in  its  nature  so  far  judicial  as 
to  require  notice  to  one  whose  individual  rights  are  directly  afifected. 
We  are  inclined  to  concur  with  appellee's  counsel  that  the  judgment 
of  the  board  is  conclusive,  but  to  that  proposition  we  add  that  it  is 
only  so  where  there  is  jurisdiction,  and  that  notice  to  one  whose  list 
is  to  be  added  to  or  whose  valuation  is  to  be  increased  is  essential  to 
give  jurisdiction.  School  Dist.'s  Appeal,  56  Pa.  315;  Osborn  v.  In- 
habitants, 6  Pick.  (Mass.)  98 ;  Hughes  v.  Kline,  30  Pa.  227 ;  Macklot 
V.  City,  17  Iowa,  379;  Deane  v.  Todd,  22  Mo.  90;  Mclntyre  v.  Town, 
43  Wis.  620. 

The  fact  that  the  judgment  is  conclusive  supplies  a  strong  reason 
for  holding  that  the  taxpayer  should  have  an  opportunity  to  be  heard, 
and  that  he  should  be  heard  before  his  list  or  his  valuation  is  set  aside 
or  changed.  The  power  to  hear  and  determine,  where  there  is  a  question 
admitting  of  controversy,  and  the  entire  matter  is  not  one  of  absolute 
and  arbitrary  discretion,  implies  that,  in  reason  and  justice,  the  law 
should,  by  making  provision  for  notice,  give  the  parties  an  opportunity 
to  be  heard;  for  otherwise  it  cannot  be  justly  said  that  there  is  due 
process  of  law. 

Thus  far  we  have  proceeded  upon  the  assumption  that  the  statute 
does  not  provide  for  notice  to  the  individual  taxpayer  whose  list  is 
to  receive  additions,  or  whose  valuation  is  to  be  increased,  and,  if  this 
assumption  cannot  be  made  good,  our  reasoning  is  invalid.  It  is,, 
however,  not  difficult  to  prove  the  validity  of  our  assumption.     The 


Ch.  4)  NOTICE.  129 

statute  itself  supplies  the  requisite  proof.  It  does  provide  notice  suf- 
ficient for  two  classes  of  judgments,  but  for  no  others.  It  provides  for 
notice  sufficient  as  to  all  general  changes  in  the  levy,  and  sufficient  as 
to  all  who  have  complaints  to  make,  and  over  these  matters  jurisdiction 
arises  when  the  notice  is  given  as  the  statute  directs.  But  there  is  no 
provision  for  notice  to  the  individual  taxpayer  whose  list  is  to  be 
added  to  or  whose  valuation  is  to  be  increased.  Its  provisions  on  the 
subject  of  notice  are  these :  ''Two  weeks'  previous  notice  of  the  time, 
place,  and  purpose  of  such  meeting  shall  be  given  by  the  county  au- 
ditor in  some  newspaper  of  general  circulation,  printed  and  published 
in  the  county;  or,  if  no  newspaper  be  published  in  the  county,  then 
by  posting  up  notices  in  three  public  places  in  each  township  in  the 
county."    Section  6397,  Rev.  St.  1881. 

This  notice,  it  is  obvious,  cannot  require  every  taxpayer  in  the  county 
to  be  in  attendance  at  the  meeting  of  the  board  to  see  that  no  additions 
are  made  to  his  list.    As  additions  to  his  list  affect  him  as  an  individual, 
he  is  entitled  to  notice  as  an  individual.    He  is  not  within  the  scope  of 
the  statute,  since  he  is  not  bound  to  assume  that  there  will  be  any 
change  in  the  verified  list  given  by  him  to  the  assessor.    His  rights  are 
distinct  from  those  of  the  public,  and  from  the  rights  of  those  persons 
who  have  complaints  to  make.    Those  who  believe  themselves  wronged 
by  having  property  listed  to  them  that  they  do  not  own,  or  who  believe 
that  their  property  has  been  overvalued,  are  actors;   they  move,  they 
take  the  initiatory  step,  and  they  must  come  before  the  board  under 
the  notice  prescribed  by  the  statute.    But  with  the  taxpayer  whose  as- 
sessment is  to  be  increased  it  is  otherwise.     He  is  not  the  actor;   he 
does  not  take  the  initiatory  step;    but,  on  the  contrary,  he  is  passive 
and  inactive  until  brought  before  the  board  by  notice.     He  is  not  un- 
der any  legal  obligation  to  move  until  notice  comes  to  him.     Indeed, 
he  cannot  move  if  he  is  content  with  his  list  and  assessment,  for  there 
I    is  nothing  for  him  to  do.    The  taxpayer  who  has  a  complaint  to  make 
I    occupies  a  position  very  similar  to  that  of  the  plaintiff  in  an  ordinary 
I   action,  while  the  person  whose  taxes  are  to  be  increased  is  in  a  posi- 
j   tion  very  like  that  of  a  defendant.     We  must  hold  that  a  taxpayer  is 
j   entitled  to  notice,  or  else  we  must  hold  that  he  is  bound,  at  his  peril, 
,   to  keep  vigilant  watch  of  the  proceedings,  lest  property  he  does  not 
1   own  be  assessed  to  him,  or  the  valuation  of  his  listed  property  be  in- 
creased.    In  the  absence  of  notice  to  him  as  an  individual,  he  is  not 
1  bound  to  exercise  any  such  vigilance.     Claybaugh  v.  Railway  Co.,  108 
j   Ind.  262,  9  N.  E.  100;   I^Iunson  v.  Blake,  101  Ind.  78. 
I       It  would  be  almost  as  unjust  to  compel  such  a  taxpayer  to  be  con- 
,    stantly  on  the  watch  during  the  meeting  of  the  board  as  to  compel  a 
I   defendant  who  has  failed  to  pay  a  note,  violated  a  covenant,  or  com- 
I  rnitted  a  trespass  to  watch  the  dockets  of  the  court  during  term  time. 
j   The  notice  does  no  more  than  inform  the  public  that  the  board  will 
j  be  in  session  at  a  designated  time  and  place,  and  no  one  is  bound  to  act 
Fb.Adm.Law. — 9 


130  ADMINISTRATIVE  POWER  AND  ACTION.  (Part    1 

upon  the  notice  further  than  to  present  complaints  or  resist  general 
changes  in  the  levy.  Certainly  no  one  is  bound  to  know  that  a  com- 
plaint will  be  preferred  against  him  affecting  his  individual  rights.  If 
one  taxpayer  is  bound  to  keep  watch  during  the  session  of  the  board, 
so  are  all,  and  the  result  would  be  that  the  meetings  of  the  board  would 
be  thronged  with  taxpayers,  or  else  their  rights  be  at  the  mercy  of  the 
board.  The  organic  law  to  which  all  statutes  must  yield  does  not  in- 
tend that  such  a  thing  shall  ever  occur,  for  it  requires  notice  to  each 
person  whose  individual  property  rights  may  become  the  subject  of 
investigation  and  final  adjudication.  This  is  a  fundamental  principle, 
ruling  all  the  departments  of  government.  A  decision  of  a  judicial 
nature,  conclusively  deciding  upon  individual  property  rights  of  a  citi- 
zen, and  imposing  a  burden  upon  him,  can  only  be  given  in  a  proceed- 
ing of  which,  before  a  final  and  conclusive  judgment  is  reached,  the 
citizen  has  notice,  for  without  such  notice  there  cannot  be  due  process 
of  law.  A  decision  not  final,  but  subject  to  review,  may  not  neces- 
sarily require  notice;  but  a  final  decision  must  be  based  on  a  notice 
provided  for  by  law. 

Judgment  reversed,  with  instructions  to  overrule  the  demurrer  to 
the  complaint. ^*^ 


RULING  V.  EHRICH. 

(Supreme  Court  of  Illinois,  1S99.     183  111.  315,  55  N.  E.  G3G.) 

Error  to  circuit  court,  Kankakee  county. 

Suit  by  Truman  Ruling  against  F.  C.  Ehrich.  Bill  dismissed,  and 
complainant  brings  error.     Reversed. 

Cartwright,  C,  J.  Truman  Ruling,  plaintiff  in  error,  is  a  resident 
and  taxpayer  of  Kankakee  township.  In  the  year  1897  he  made  and 
delivered  to  the  assessor  a  list  of  his  personal  property  in  compliance 
with  the  statute,  which  included  $5,000  in  moneys  and  credits.  This 
list  was  accepted  by  the  assessor,  and  the  total  value,  as  fixed  by  the 
assessor  and  placed  in  his  books,  was  $5,595,  including  said  amount 
of  moneys  and  credits.  The  town  board  of  review  met  June  30, 
1897,  and  increased  this  assessment  from  $5,595  to  $10,595  without 
any  notice  to  Ruling,  and  without  his  knowledge  or  consent,  and  made 
this  record  of  their  action:  "The  assessment  of  Truman  Ruling  is 
raised  to  the  amount  of  $10,000  on  his  moneys  and  credits,  which  the 
board  deems  to  be  about  right."  On  the  assessments,  so  increased,  of 
$10,595,  a  tax  of  $1,100.83  was  levied. 

Ruling  first  learned  of  the  increase  when  the  collector  attempted  to 
collect  the  tax,  and  he  then  tendered  $581.33,  the  proportionate  amount 
of  the  tax  on  the  assessment  as  first  made  by  the  assessor,  and  filed  his 

10  Contra:    State  v.  New  Lindell  Hotel  Co.,  9  Mo.  App.  450  (1881). 


Ch.  4)  NOTICE.  131 

bill  against  F.  C.  Ehrich,  the  collector,  defendant  in  error,  to  enjoin 
the  collection  of  $519.50,  the  portion  of  the  tax  levied  on  the  increase 
of  $5,000  made  by  the  town  board.  The  bill  was  answered,  and  the 
answer  admitted  that  the  tax  was  extended  on  the  valuation  as  made 
by  the  board  of  review,  and  admitted  the  tender,  but  denied  that  the 
board  of  review  acted  without  notice,  and  averred  that  the  valuation 
was  not  inequitable.  On  a  hearing,  the  facts  alleged  in  the  bill  were 
proved,  but  the  court  dismissed  the  bill,  at  complainant's  cost,  for 
want  of  equity. 

The  township  board  of  review  was  only  authorized  to  act  and  raise 
complainant's  assessment  after  giving  notice  in  writing  to  him  or  his 
agent.  Rev.  St.  c.  120,  §  86.  He  made  out  and  delivered  to  the  asses- 
sor a  list  of  his  taxable  property,  which  was  accepted  by  the  assessor. 
If  it  was  proposed  to  increase  his  assessment,  he  was  entitled  to  a  hear- 
ing, and  an  opportunity  to  show  the  facts,  and  the  board  had  no  power, 
without  notice  to  him,  to  increase  such  assessment.  He  had  no  knowl- 
edge of  the  increase  until  the  collector  attempted  to  collect  the  tax. 
The  board  had  no  jurisdiction  to  reassess  his  property,  and  in  such  case 
equity  will  restrain  the  collection  of  the  illegal  tax  on  the  ground  that 
the  assessment  is  void  as  to  the  increase.  Cleghorn  v.  Postlewaite,  43 
111.  4-?8 ;  Darling  v.  Gunn,  50  111.  424  ;  McConkey  v.  Smith,  73  111. 
313 ;  Bank  v.  Cook,  77  111.  622 ;  Camp  v.  Simpson,  118  111.  224,  8  N.  E. 
308. 

It  is  argued  that,  since  complainant  asked  the  aid  of  a  court  of  equity 
and  was  bound  to  do  equity,  he  must  fail,  unless  he  showed  that  the 
assessment  was  raised  above  the  fair  valuation  of  all  his  taxable  prop- 
erty. He  tendered  all  the  tax  that  had  been  levied  by  authority  of  law, 
and  that  is  all  equity  would  require  him  to  pay. 

It  is  also  urged  that  the  court  properly  denied  relief,  because  no  wit- 
ness testified  that  the  amount  tendered  was  the  proportionate  share  of 
the  tax  levied  on  the  assessor's  valuation.  It  is  said  that  the  court 
could  not  determine  what  proportion  of  the  tax  was  illegal,  because  no 
witness  testified  to  the  amount.  It  was  not  necessary  that  there  should 
be  any  such  proof.  The  question  of  the  proportionate  amount  of  the 
tax  levied  on  a  valuation  of  $10,595,  arising  from  the  original  assess- 
ment of  $5,595  and  the  increase  of  $5,000,  was  a  mere  matter  of  com- 
putation, and  not  a  fact  to  be  proved  by  witnesses. 

The  decree  of  the  circuit  court  is  reversed,  and  the  cause  remanded, 
with  directions  to  enter  a  decree  in  accordance  with  the  prayer  of  the 
bill.    Reversed  and  remanded. 


132  ADMINISTRATIVE   POWER  AND  ACTION.  (Part    1 

SECTION  20.— IN  THE  EXERCISE  OF  THE  POLICE  POWER 


WAYE  V.  THOMPSON. 

(Supreme  Court  of  Judicature,  Queen's  Bench  Division,   1885.     L.  R.  15 
Q.  B.  Div.  342.) 

Case  stated  by  justices  under  St.  20  &  21  Vict.  c.  43,  on  the  hearing 
at  petty  sessions  of  an  information  preferred  by  the  appellant,  an 
inspector  of  nuisances,  against  the  respondent,  a  butcher,  under  St. 
38  &  39  Vict.  c.  55,  §  117>i 

Upon  the  hearing  ^-  the  following  facts  were  proved,  viz. :  That  the 
meat  was  in  the  possession  of  and  exposed  for  sale  by  the  respondent, 
and  was  intended  for  the  use  of  man ;  that  it  was  seized  by  the  appel- 
lant on  the  21st  of  October,  1884,  and  on  the  same  day  taken  before 
Thomas  Barlow  Mafsicks,  Esq.,  a  justice  of  the  peace,  and  it  appearing 
to  him  on  an  ex  parte  statement  not  on  oath  that  such  meat  was  dis- 
eased, unsound,  unwholesome,  and  unfit  for  the  food  of  man,  he  did 
thereby  condemn  the  meat,  and  ordered  the  same  to  be  destroyed  or  so 
disposed  of  to  prevent  the  same  from  being  exposed  for  sale  or  used 
for  the  food  of  man.  On  the  following  day,  however,  the  said  justice, 
at  the  request  of  the  resjwndent,  directed  the  appellant  not  to  destroy 
the   carcase  of  meat  until   the  owner   could  have   it  inspected  by  a 

1 1  Euglisli  Public  Health  Act,  1875,  38  Vict.  c.  55 : 

"Sec.  IIG.  Any  medical  officer  of  health  or  inspector  of  nuisances  may  at 
all  reasonable  times  inspect  and  examine  any  animal,  carcase,  meat,  poultry, 
};ame,  flesh,  fish,  fruit,  vegetables,  corn,  bread,  flour,  or  milk  exposed  for 
sale,  or  deposited  in  any  place  for  the  purpose  of  sale,  or  of  preparation  for 
sale,  and  intended  for  the  food  of  man,  the  proof  that  the  same  was  not  ex- 
posed or  deposited  for  any  such  purpose,  or  was  not  intended  for  the  food  of 
man,  resting  with  the  party  charged;  and  if  any  such  animal,  carcase,  meat, 
poultry,  game,  flesh,  fruit,  vegetables,  corn,  bread,  flour  or  milk  appears  to 
such  medical  officer  or  inspector  to  be  diseased  or  unsound  or  unwholesome, 
or  unfit  for  the  food  of  man,  he  may  seize  and  carry  away  the  same  himself 
or  by  an  assistant,  in  order  to  have  the  same  dealt  with  by  a  justice. 

"Sec.  117.  If  it  appears  to  the  justice  that  any  animal,  carcase,  meat,  poul- 
try, game,  flesh,  fish,  fruit,  vegetables,  corn,  bread,  flour,  or  milk  so  seized 
is  diseased  or  unsound  or  unwholesome  or  unflt  for  the  food  of  man,  he  shall 
condemn  the  same,  and  order  it  to  be  destroyed  or  so  disposed  of  as  to  pre- 
vent it  from  being  exposed  for  sale  or  used  for  the  food  of  man;  and  the 
person  to  whom  the  same  belongs  or  did  belong  at  the  time  of  exposure  for 
sale,  or  in  whose  possession  or  on  whose  premises  the  same  was  found,  shall 
be  liable  to  a  penalty  not  exceeding  twenty  pounds  for  every  animal,  carcase, 
or  fish,  or  piece  of  meat,  flesh,  or  flsh,  or  any  poultry  or  game,  or  for  the 
parcel  of  fruit,  vegetables,  corn,  bread,  or  flour,  or  for  the  milk  so  con- 
demned, or  at  the  discretion  of  the  justice,  without  the  infliction  of  a  fine, 
to  imprisonment  for  a  term  of  not  more  than  three  montlis.'' 

12  It  was  stated  by  counsel  during  argument  that  a  summons  had  issued 
against  the  respondent,  calling  on  him  to  show  cause  why  the  penalty  under 
section  117  should  not  be  inflicted. 


I 


Ch.  4)  NOTICE.  133 

veterinary  surgeon,  which  inspection  was  accordingly  made  b>   wit- 
nesses on  respondent's  behalf. 

The  appellant  called  witnesses  to  prove  that  the  meat  was  diseased, 
unsound,  unwholesome,  and  unfit  for  the  food  of  man.  The  respondent 
thereupon  proposed  to  call  the  witnesses  who  by  the  permission  of  the 
said  justice  had  inspected  the  meat  on  his,  the  respondent's,  behalf,  and 
also  other  witnesses,  some  of  whom  had  seen  the  cow  before  it  was 
slaughtered  and  after  it  had  been  dressed,  and  others  who  had  seen 
other  portions  of  the  carcase  of  the  cow  from  which  the  alleged  dis- 
eased meat  had  been  cut,  some  before  and  others  after  the  same  had 
been  condemned  by  the  said  justice  (including  medical  and  veterinary 
men)  and  other  witnesses  who  alleged  they  had  partaken  of  meat  from 
the  same  animal.  This  testimony  was  objected  to  by  the  appellant  on 
the  following  grounds : 

(1)  That  the  question  of  the  meat  being  diseased,  unsound,  unwhole- 
some, and  unfit  for  the  food  of  man  had  been  already  adjudicated  upon 
and  decided  in  the  affirmative  by  a  justice  of  the  peace  on  an  ex  parte 
proceeding,  evidence  of  which  had  been  presented  to  the  justices. 

(2)  The  evidence  to  the  contrary  should  not  be  admitted  by  the 
justices, 

(3)  That  the  evidence  furnished  to  them  by  the  appellant  was  suf- 
ficient to  justify  a  conviction  of  the  respondent  under  the  117th  sec- 
tion of  the  Public  Health  Act,  1875,  for  the  offences  alleged  against 
him. 

The  justices  overruled  the  objections  and  heard  the  evidence  of  the 
defendant's  witnesses,  which  satisfied  the  justices  that  the  meat  was 
not  diseased,  but  was  wholesome,  sound,  and  fit  for  the  food  of  man, 
and  the  justices  gave  their  decision  against  the  appellant,  and  ordered 
him  to  pay  the  respondent's  costs. 

The  question  upon  which  this  case  was  stated  for  the  opinion  of 
the  court  was  whether  the  justices  should  have  permitted  evidence  to 
be  given  by  the  respondent  as  to  the  state  and  condition  of  the  said  meat 
at  the  time  it  was  ordered  to  be  destroyed  by  the  said  Thomas  Barlow 
Mafsicks.^^ 

Manisty_,  J.  (after  stating  the  facts  as  they  appeared  in  the  case). 
The  information  laid  was  no  doubt  the  groundwork  of  a  summons. 
and  we  are  told  that  the  practice  is  to  issue  a  summons  calling  on  the 
respondent  to  shew  cause  why  he  should  not  be  sent  to  prison  or  fined. 
On  the  hearing  of  that  matter — and  not  of  the  information  as  alleged 
in  the  case,  which  is  imperfectly  stated — the  magistrates  were  called 
upon  to  decide  whether  or  not  the  meat  was  fit  for  human  food,  and  the 
question  is  whether  they  were  justified  in  admitting  the  evidence  as  to 
the  state  of  the  meat. 

The  cases  of  White  v.  Redfern,  5  O.  B.  D.  15,  and  Vintner  v.  Hind, 
10  Q.  B.  D.  63,  do  not  assist  us.     White  v.  Redfern  decides  that  a 

13  The  arguments  of  counsel  are  omitted. 


134  ADMIXISTUATIVE   TOWER   AND   ACTION.  (Part    1 

justice  may,  without  hearing  evidence  on  behalf  of  the  butcher,  con- 
demn the  meat ;  but  that  does  not  help  us  in  the  present  question,  viz., 
when  a  man  is  in  peril  of  being  sent  to  prison  or  fined,  is  he  to  be 
heard  or  not?  It  is  contrary  to  first  principles  to  say  that  a  man  can 
be  sent  to  prison  or  convicted  without  being  heard.  The  respondent 
was  not  heard,  ^and  it  was  not  necessary  that  he  should  be  heard,  when 
the  case  was  before  the  magistrate  in  the  first  instance.  That  magis- 
trate was  satisfied  that  it  was  made  to  appear  to  him  the  meat  was  dis- 
eased and  he  condemned  it.  If  the  respondent  is  not  allowed  to  give 
evidence  when  summoned  to  show  cause  why  he  should  not  be  sent  to 
prison  or  fined,  he  has  not  an  opportunity  of  being  heard  at  all,  and  it 
would  be  the  first  case  I  ever  knew  of  a  man  being  subject  to  imprison- 
ment or  fine,  without  having  been  heard.  I  am  clearly  of  opinion  that 
the  magistrates  were  right  in  receiving  the  evidence.^* 


CITY  OF  PHILADELPHIA  v.  SCOTT. 

(Supreme  Court  of  Penusylvauia,  3876.     81  Ta.  80,  22  Am.  Rep.  73S.) 

Agnijw,  C.  J.^^  *  *  *  The  only  question,  therefore,  remaining  is 
whether  the  act  has  furnished  a  constitutional  mode  of  proceeding,  to 
bind  the  owner  of  the  land  to  the  payment  of  the  expense  of  the  repairs. 
The  following  are  all  its  material  provisions :  "It  shall  be  the  duty  of 
the  commissioners  *  *  *  upon  complaint  by  any  person  owning  prop- 
erty fronting  upon  such  river,  or  liable  to  be  damaged  by  the  over- 
flow of  the  same,  that  said  banks,  or  any  part  thereof,  are  out  of  repair, 
or  in  an  unsafe  or  insecure  condition,  to  give  notice  forthwith  to  the 
owner  or  owners  of  such  part  or  portion  to  repair  the  same  within 
forty-eight  hours  after  such  notice,  *  *  *  and  in  case  such  owner 
or  owners  shall  neglect  or  refuse  to  cause  such  repairs  to  be  made  with- 
in the  time  aforesaid  *  *  *  it  shall  be  the  duty  of  such  commis- 
sioners to  cause  the  said  banks  to  be  well  and  thoroughly  repaired,  etc., 
and  tliey  shal  enter  the  same  as  a  lien  against  the  said  premises  and  the 
owners  thereof."  The  law  then  provides  for  a  scire  facias  to  enforce 
payment,  and  declares  "that  upon  the  trial  of  such  action  the  said  de- 
fendant shall  only  be  permitted  to  aver  and  prove  in  defence  that  the 
lien,  in  whole  or  in  part,  has  been  paid  since  the  same  was  filed,  and 
that  all  matters  necessary  for  a  recovery  on  part  of  the  plaintiffs  shall 
be  considered  as  proved  by  the  production  of  the  lien  and  scire  facias 
thereon  at  the  time  of  trial." 

The  law,  it  will  be  seen,  provides  no  mode  of  determining  the  neces- 
sity for  repair,  not  even  the  judgment  of  the  commissioners,  for  they 

14  See  Cooper  v.  Wandsworth  Board  of  Works,  14  C.  B.  (N.  S.)  180  (18G3), 
I!Ost,  p.  252. 

See.  also,  Vestry  of  St.  John's  y.  Hutton,  [1897]  1  Q.  B.  210. 

15  Only  a  portion  of  the  opinion  of  Chief  Justice  Agnew  is  printed. 


Ch.  4)  NOTICE.  135 

are  bound,  on  complaint,  forthwith  to  give  notice,  and  the  owner  is 
bound,  within  forty-eight  hours  after  notice,  to  make  the  repairs,  and, 
on  default,  the  commissioners  shall  do  the  work  at  his  expense.  Wheth- 
er the  bank  actually  needs  repair,  or  the  injury  complained  of,  if  any,  is 
a  total  destruction  of  the  bank,  demanding  reconstruction,  or  a  mere 
repair,  which  the  owner  is  bound  to  do,  is  not  to  be  ascertained  before 
the  liability  is  settled  upon  him.  He  is  to  pay  at  all  events,  and  this 
case  itself  is  evidence  of  the  necessity  of  the  provision  to  determine  the 
nature  of  the  thing  complained  of,  for  we  have  a  finding  of  $6,-i45.GG 
against  the  defendant,  a  sum  which  looks  more  like  the  price  of  recon- 
struction than  of  repair.  Repair  is  all  this  law  provides  for.  Perhaps 
some  allowance  might  be  made,  and  the  clause  requiring  the  commis- 
sioners "to  cause  the  banks  to  be  well  and  thoroughly  repaired"  might 
be  interpreted  as  inferentially  requiring  an  examination  and  decision 
upon  the  duty  of  repairing  before  they  proceeded  to  do  it.  But  we  are 
met  by  the  proviso,  which  forbids  any  defence  but  payment.  There 
can  be  no  inquiry  into  the  fact  whether  the  commissioners  actually 
did  determine  it  to  be  a  case  of  necessary  repair,  whilst  they  may  have 
gone  on  different  grounds.  An  act  which  subjects  a  man  to  a  penalty 
of  over  $6,000  for  not  doing  the  work  for  which  complaint  was  lodged 
should  clearly  devolve  the  duty  of  decision  upon  some  impartial 
tribunal. 

The  case  of  Kennedy  v.  Board  of  Health,  2  Pa.  3G6,  is  not  in  point. 
There  the  twenty-seventh  section  of  the  act  of  29th  of  January,  1818, 
grounds  the  right  of  the  board  to  abate  the  nuisance  in  express  words  in 
the  opinion  of  the  board  that  the  nuisance  tends  to  endanger  the  health 
of  the  citizens.  This  is  an  essential  prerequisite,  and  the  citizen  is 
absolutely  entitled  to  the  judgment  of  the  board  on  this  point.  This 
feature  is  at  the  foundation  of  the  decision.  In  that  case  the  constitu- 
tional question  was  not  raised.  But  here  the  learned  judge  below  was 
of  opinion  that  the  act  of  1848  does  not  furnish  due  process  of  law, 
within  the  protection  of  the  ninth  section  of  the  Declaration  of  Rights, 
that  no  one  shall  be  "deprived  of  his  life,  liberty  or  property  unless  by 
the  judgment  of  his  peers  or  the  law  of  the  land."  In  this  view  we 
concur.  What  is  meant  by  the  law  of  the  land  has  been  fully  discussed 
in  Craig  v.  Kline,  65  Pa.  413,  and  the  cited  authorities.  I  shall  not 
enlarge  upon  it.  Suffice  it  to  say,  the  law  must  furnish  some  just  form 
or  mode  in  which  the  duty  of  the  citizen  shall  be  determined  before 
he  can  be  visited  with  a  penalty  for  nonperformance  of  the  alleged  duty. 
The  proceeding  must  be  in  its  nature  judicial,  though  it  is  not  nec- 
essary it  should  be  before  one  of  the  ordinary  judicial  tribunals  of  the 
state. 

Judgment  affirmed. 


136  ADMINISTUATIVE   POWER  AND   ACTION.  (Part    1 


IIUTTON  et  ux.  v.  CITY  OF  CAMDEN. 

(Court  of  Errors  iiud  Appeals  of  New  Jersey,  1876.     39  N.  J.  Law,  122,  23 
Am.  Rep.  203.) 

Beasley,  C.  J.^®  *  *  *  From  an  inspection  of  the  bill  of  ex- 
ceptions, it  appears  that,  at  a  meeting  of  the  board  of  health  on  the  29th 
of  December,  1874,  the  following  resolution  was  passed,  to  wit:  "Mof- 
fet  moved  that  the  lot  of  Mr.  Hutton,  on  Federal  street,  above  Broad- 
way, be  declared  a  nuisance,  and  he  (Hutton)  be  notified  to  fill  said 
lot  up  to  grade.  Agreed  to."  On  the  7th  of  the  following  January  the 
following  notice  was  served:  "Mr.  D.  W.  J.  and  Mary  Hutton — You 
are  hereby  notified  by  the  board  of  health  of  the  city  of  Camden  to  fill 
up  to  grade  your  lot,  situated  on  Federal  street,  forty  feet,  southeast 
corner  Broadway  and  Federal  street,  within  ten  days  from  date."  This 
order  not  being  complied  with,  the  city  did  the  work,  at  a  cost  of 
$313.30,  and  this  suit  was  brought  by  the  city  to  obtain  reimbursement 
for  this  outlay  from  the  plaintifl:'s  in  error.     *  •  ''■'     * 

From  the  history  of  the  proceedings,  it  appears  that  the  before-cited 
resolution  of  the  board  of  health  was  regarded,  and  was  adjudged  at 
the  trial,  to  be  absolutely  conclusive  of  the  question  embraced  in  its 
decision.  The  board  had  agreed  to  the  proposition  that  the  lot  of  the 
plaintiffs  was  a  nuisance,  and  that  ended  the  matter,  for  all  the  purposes 
of  the  suit  then  trying.  The  resolution  was  looked  upon  as  a  judg- 
ment that  was  just  as  final  as  would  have  been  the  judgment  of  the 
Supreme  Court  of  the  state.  It  mattered  nothing  that  the  person  whom 
the  resolution  was  to  affect  had  not  been  notified  of  the  action  about 
to  be  taken  affecting  his  interest,  and  had,  therefore,  no  opportunity 
of  being  heard;  nor  that  it  affirmatively  appeared,  on  the  plaintiffs' 
own  case,  that  no  public  nuisance,  in  point  of  fact,  had  existed  on  the 
property  in  question;  or  that  a  body  of  five  persons  had  pronounced 
judgment,  without  evidence,  on  the  representation  of  two  of  its 
members;  or  that  such  board  had  pronounced  the  lot  itself  to  be  a 
nuisance,  without  specifying  in  what  respect,  so  as  to  enable  the  owner 
to  remove  whatever  was  objectionable;  or  that  the  order,  instead  of 
being  to  abate  a  designated  nuisance,  leaving  it  to  the  lot  owner  to 
abate  it  in  his  own  fashion,  had  directed  the  lot  to  be  filled  in  to  grade — 
yet,  notwithstanding  all  these  omissions  and  errors,  which  were  ob- 
viously so  flagrant  as  to  leave  in  the  action  of  this  tribunal  not  the 
faintest  semblance,  either  in  form  or  substance,  of  a  proceeding  in  an 
ordinary  court  of  justice,  was  pronounced  to  be,  in  point  of  law,  final, 
and  to  import  absolute  verity. 

But  this  view  of  the  efficacy  to  be  given  to  this  decision  of  the  board 
of  health,  even  if  such  board  is  to  be  regarded  as  a  special  tribunal, 
authorized  by  the  Legislature  to  pass  upon  the  matter  adjudged  by  it. 
is,  I  think,  manifestly  erroneous.     It  is  not  within  the  competence  of 

le  Only  a  part  of  the  opinion  of  Beasley,  O.  J.,  is  printed. 


Ch.  4)  NOTICE.  137 

legislation  in  this  state  to  authorize  any  tribunal  to  render  a  judgment 
against  the  person  or  property  of  a  citizen  without  a  notice,  and  an  op- 
portunity afforded  him  to  be  heard.  If  the  charter  of  the  city  of  Cam- 
den had  declared  that  the  board  of  health  should  have  the  power  of  ren- 
dering decisions  similar  to  the  present  one,  and  under  the  same  condi- 
tions of  procedure,  such  provision  would  have  been  entirely  nugatory.  A 
judgment  in  any  court,  without  in  any  wise  summoning  the  defendant, 
would  be  void,  and  not  merely  voidable.  It  is  true  that  where  the  pro- 
ceeding is  in  any  of  our  domestic  tribunals,  whose  action  is  regulated  by 
the  common  law,  it  will  not  be  admissible  to  show  the  fact,  in  a  col- 
lateral way,  that  the  sentence  was  rendered  against  a  defendant  who 
was  not  duly  in  court ;  the  rule,  introduced  from  the  civil  law,  being, 
"res  judicata  pro  veritate  accipitur."  And  this  estoppel  springs  from 
the  circumstance  that  in  courts  so  constituted  there  is  a  remedy  pro- 
vided against  errors  of  every  description.  But  this  rule,  which  this 
[thus]  conclusively  presumes,  that  courts  of  this  character  had  juris- 
diction by  means  of  due  citation  over  the  person  of  the  suitor,  does  not 
apply  to  inferior  and  special  tribunals  not  being  courts  of  record,  and 
whose  methods  of  action  are  not  in  accordance  with  those  of  the  com- 
mon law.  Whenever  the  act  of  such  a  judicial  body  comes  in  question, 
its  jurisdiction  over  the  particular  case  adjudged  is  a  mere  matter  in 
pais,  and  is  open  to  inquiry  by  evidence.     *     *     *  17 


METROPOLITAN  BOARD  OF  HEALTH  v.  HEISTER 
(two  cases). 

HEISTER  V.  METROPOLITAN  BOARD  OF  HEALTH 
(two  cases). 

(Court  of  Appeals  of  New  York,  18GS.     37  N.  Y.  661.) 

The  above  four  cases  were  submitted  to  the  General  Term  of  the 
Supreme  Court  in  the  First  Judicial  District,  by  the  parties,  under  the 
Code,  for  the  purpose  of  procuring  decisions  upon  questions  that  had 
arisen  between  them,  and  which  are  also  involved  in  several  other 
pending  suits. 

In  case  No.  1,  the  board  claims  to  recover  the  penalty  given  by  the 
statute  against  one  who  has  violated  its  order.  The  defendant,  when 
the  order  was  made,  was  engaged  as  a  butcher,  in  the  business  pursuit 
of  "slaughtering  cattle  at  his  slaughterhouse.  No.  95  Fourth  street,  in 
the  city  of  New  York,  which  said  slaughterhouse  was  in  the  densely 
populated  portions  of  said  city,  and  was  upon  a  paved  street."  The 
board  of  health,  the  plaintiff,  on  said  day,  as  contemplated  by  the  first 
subdivision  of  the  fourteenth  section  of  the  metropolitan  health  law 
(Laws  18G6,  c.  14),  "took  and  filed  among  its  records  what  (the  same 

1'  See  Weil  v.  Ricord,  24  N.  J.  Eq.  169  (1861). 


I 


138  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

being  written  evidence)  the  plaintiff  regarded  as  sufficient  proof  to 
authorize  its  declaration  that  the  same  (the  using  of  said  slaughterhouse 
for  said  pursuit)  was  dangerous  to  health,  and  was  also  a  public  nui- 
sance." Said  proof  "consisted  of  statements  of  competent  persons, 
under  oath,  that  said  business  endangered  the  health  of  the  people  of 
the  vicinity,  was  offensive  to  their  senses,  and  rendered  their  life  un- 
comfortable, and  of  facts  sustaining  .such  statements."  The  board 
thereupon  "ordered  said  business  to  be  discontinued,  and  said  nuisance 
to  be  abated,"  but  directed  that  the  order  should  not  be  executed  till 
the  same  had  been  served  on  the  defendant,  and  he  had  been  afforded  an 
opportunity  to  be  heard.  This  order  was  duly  served  on  the  defendant, 
and  it  is  admitted  "that  the  defendant  might  have  applied  for,  and  have 
had,  the  opportunity  and  hearing  contemplated  in  said  section,  but  did 
not,  at  any  time,  apply  for  the  same,  but  declined  or  omitted  so  to  do ; 
that  the  plaintiff  waited  more  than  three  days,  as  provided  by  law,  after 
such  service,  and  before  commencing  the  execution  of  said  order."  And 
thereafter  a  final  order  was  in  due  course  made  by  the  board,  which 
is  set  out  at  length.  The  police  were  directed  to  execute  this  order, 
"and  the  execution  of  the  order  was  duly  commenced" ;  and  "all  doings 
and  proofs  and  order  of  said  board  in  the  premises  appear  among  its 
archives,  as  the  law  provides."  The  submission  to  the  court  below  was 
formally  made  by  both  parties.  The  defendant's  theory  was  sustained, 
and  judgment  ordered  in  his  favor,  and  an  appeal  has  been  taken  to  this 
court  by  the  plaintiffs.     *     *     * 

Case  No.  4  arises  on  the  same  state  of  facts,  and  relates  to  the  same 
order,  as  case  No.  1 ;  but  it  is  a  suit  by  the  butcher  against  the  board  to 
obtain  an  injunction  to  prevent  the  board  enforcing  its  order,  forbid- 
ding slaughtering  at  the  place  to  which  the  order  relates.  The  case 
dift'ers  from  No.  1  only  at  the  point  where  the  plaintiff  states  his  claims 
and  demands  his  remedy.  The  board  found  the  same  facts  as  to  the 
business  being  "dangerous  to  health,"  made  the  same  order,  and  gave 
the  plaintiff  the  same  opportunity  for  a  hearing,  which  he  declined, 
as  in  case  No.  1.  It  appears  that  the  record  of  the  decision  and  pro- 
ceedings of  the  board  are  preserved  among  its  records.  The  decision 
of  the  General  Term  was  in  favor  of  Heister,  and  the  board  of  health 
bring  their  appeal  to  this  court. 

Hunt,  C.  J.^®  *  *  *  Before  leaving  the  consideration  of  this 
constitutional  objection,  it  ought,  perhaps,  to  be  observed  that  the  act 
provides  for  notice  to  the  party  affected,  before  the  judgment  finally 
passes  against  him.  In  substance,  the  board,  upon  the  evidence  before 
it,  determine  that  a  prima  facie  case  exists  requiring  their  action.  In 
the  present  instance,  after  such  preliminary  determination  made,  notice 
was  given  to  Heister  of  what  had  been  done,  and  that  he  could  be  heard 
upon  the  subject,  with  his  witnesses,  at  a  time  designated.  This  gave 
the  same  protection  to  all  his  rights  as  if  notice  had  been  served  upon 

1 8  Only  a  portion  of  the  statement  and  of  the  opinion  of  Hunt,  C.  J.,  is 
printed. 


Ch.  4)  NOTICE.  139 

him  before  any  preliminary  proceedings  had  been  taken.  He  refuses  to 
litigate  before  the  board  the  question  whether  his  pursuit  is  dangerous 
to  the  pubHc  heaUh,  but  places  himself  upon  their  want  of  power  over 
the  subject.  He  cannot  complain  now  that  their  judgment  upon  the 
facts  is  to  be  held  conclusive  upon  him. 


PEOPLE  ex  rel.  COPCUTT  v.  BOARD  OF  HEALTH  OF  CITY 
OF  YONKERS. 

(Court  of  Appeals  of  New  York,  1893.     140  N.  Y.  1,  35  N.  E.  320,  23  L.  R. 
A.  481,  37  Am.   St.   Rep.  522.) 

Appeal   from  Supreme  Court,  General  Term,   Second  Department. 

Certiorari  by  the  People  of  the  State  of  New  York  on  the  relation 
of  John  Copcutt  to  review  the  action  of  the  Board  of  Health  of  the 
City  of  Yonkers  in  enacting  an  ordinance  declaring  certain  mill  ponds 
owned  by  relator  in  such  city  to  be  public  nuisances,  and  directing  the 
issuance  of  a  warrant  authorizing  the  proper  officer  to  remove  and 
abate  the  same.  From  a  judgment  of  the  General  Term  (71  Hun,  84, 
24  N.  Y.  Supp.  629)  affirming  the  proceedings  of  the  board,  relator 
appeals.    Affirmed. 

The  other  facts  fully  appear  in  the  following  statement  by  Earl^  J. : 

The  Nepperhan  river  is  a  small  stream  of  water  flowing  through 
the  city  of  Yonkers,  and  across  the  stream  there  were  several  dams, 
to  furnish  power  to  drive  machinery.  Much  con.  Jaint  having  been 
made  to  the  board  of  health  that  these  dams  created  nuisances,  the 
members  of  the  board  resolved  to  hold  a  meeting  on  the  2Tth  day  of 
March  last  to  consider  the  condition  of  the  dams,  and  they  ordered 
notice  to  be  given  to  the  owners  of  the  dams  to  show  cause  at  that 
time  why  the  dams  should  not  be  removed.  In  pursuance  of  this  reso- 
lution, notice  was  served  upon  the  relator,  who  owned  or  was  interested 
in  two  of  the  dams  and  the  ponds  and  water  powers  thereby  created, 
called  the  "5th"  and  "6th"  water  powers,  and  he  appeared  before  the 
board  at  the  time  and  place  in  person  and  by  counsel,  and  he  gave  evi- 
dence tending  to  show  that  the  two  dams  were  not  nuisances,  and 
did  not  create  nuisances ;  and  there  was  also  evidence  in  conflict  with 
the  case  made  by  him.  After  hearing  the  evidence,  the  board  made  its 
determination  that  the  dams  were  nuisances,  and  ordered  them  re- 
moved. The  relator  then  instituted  this  proceeding  by  certiorari  to 
review  this  determination.  The  board  made  return  to  the  writ,  setting 
forth  all  its  proceedings  and  the  evidence  taken  by  it,  and  stated  in 
its  return  that  its  determination  and  action  were  based  "not  only  upon 
testimony  given  by  the  witnesses,  but  that  the  determination  of  the 
said  board  of  health,  and  the  members  thereof,  has  been  based  mainly 
upon  the  individual  knowledge  and  experience  of  the  members  of  said 
board  of  health  concerning  the  ponds  in  the  Nepperhan  stream,  and  the 


140  ADMIXISTRATIVI-:    POWIOU   AND   ACTION.  (Part    1 

condition  thereof,  inasmuch  as  each  member  of  the  board  of  health, 
in  performance  of  the  duties  imposed  by  law,  has  personally  inspected 
and  has  examined  and  inquired  into  the  condition  of  said  ponds  and  of 
said  stream,  and  that  the  conclusions  reached  by  this  board  have  been 
reached  and  depend  largely  upon  personal  knowledge  and  experience 
of  the  individual  members  of  this  board,  and  for  this  reason  it  is  ap- 
parent that  this  board  cannot  certify  to  and  reproduce  before  this 
court  all  of  the  proofs,  nor  all  of  the  grounds  of  the  determination  of 
said  board,  nor  any  considerable  part  thereof."  Upon  the  return  and 
the  papers  filed  therewith  the  general  term  affirmed  the  action  of  the 
board,  and  then  the  relator  appealed  to  this  court. 

Earl,  J.^"  (after  stating  the  facts).  The  disposition  of  this  case 
turns  largely  upon  the  effect  and  the  construction  of  the  statutes  con- 
stituting the  board  of  health,  and  defining  its  powers  and  duties,  and 
we  will  therefore  first  give  attention  to  the  statutes. 

By  chapter  184  of  the  Laws  of  1881  (an  act  to  revise  the  charter  of 
the  city  of  Yonkers)  it  is  provided  in  title  9  that  the  mayor,  the  super- 
visor, the  president  of  the  common  council,  the  president  of  the  board 
of  water  commissioners,  the  president  of  the  board  of  police,  and  the 
health  officer  shall  constitute  the  board  of  health  of  the  city;  and 
the  board  is  given  power,  among  other  things,  "to  suppress,  abate,  and 
remove  any  public  nuisance  detrimental  to  the  public  health,"  and,  in 
addition  to  other  remedies  which  it  may  possess  by  law,  it  is  empow- 
ered to  issue  its  warrant,  whenever  necessary,  to  the  sheriff  of  the 
county  of  Westchester,  or  to  any  policeman  of  the  city,  authorizing 
and  commanding  him  to  forthwith  suppress,  abate,  and  remove  sucl} 
public  nuisance,  at  the  expense  of  the  lot  whereon  the  nuisance  exists, 
and  of  the  owner  thereof,  to  be  enforced  and  collected  as  in  the  act 
provided.  It  is  further  provided  that,  in  addition  to  the  powers  ex- 
pressly granted  in  the  act,  the  board  shall  "have  and  exercise  all  the 
powers  now  or  at  any  time  hereafter  conferred  upon  boards  of  health 
in  cities  by  any  general  law ;"  and  it  is  authorized  to  make  ordinances, 
rules,  and  regulations  to  carry  into  effect  its  powers,  and  to  enforce 
observance  of  them  by  penalties,  and  by  action  instituted  in  its  name 
to  recover  penalties  and  to  restrain  and  abate  the  nuisance. 

By  chapter  370  of  the  Laws  of  1885  (the  general  act  for  the  preserva- 
tion of  the  public  health)  it  is  provided  that  the  board  of  health  in 
any  city  of  the  state,  except  the  cities  of  New  York,  Brooklyn,  and 
Buffalo,  shall  have  the  power,  and  it  shall  be  its  duty,  "to  receive  and 
examine  into  the  nature  of  complaints  made  by  any  of  the  inhabitants 
concerning  nuisances  or  causes  of  danger  or  injury  to  life  and  health 
within  the  limits  of  its  jurisdiction;  to  enter  upon  or  within  any  place 
or  premises  where  nuisances  or  conditions  dangerous  to  life  and  health 
are  known  or  believed  to  exist,  and  by  appointed  members  or  persons 
to  inspect  and  examine  the  same,  and  all  owners,  agents  and  occupants 

19  A  portion  of  the  opiuiou  is  omitted. 


Ch.  4)  NOTICE.  141 

shall  permit  such  sanitary  examinations,  and  said  board  of  health  shall 
furnish  said  owners,  agents  and  occupants  a  written  statement  of  re- 
sults or  conclusions  of  such  examinations ;  and  every  such  board  of 
health  shall  have  power,  and  it  shall  be  its  duty,  to  order  the  suppres- 
sion and  removal  of  nuisances  and  conditions  detrimental  to  life  and 
health  found  to  exist  within  the  limits  of  its  jurisdiction,"  and  "to 
make,  without  the  publication  thereof,  such  orders  and  regulations  in 
special  and  individual  cases,  not  of  general  application,  as  it  may  see 
fit,  concerning  the  suppression  and  removal  of  nuisances."  It  is  fur- 
ther authorized  to  abate  nuisances,  and  to  impose  penalties  for  the 
violation  of  its  orders  and  regulations,  and  the  violation  of  them  is 
also  made  a  misdemeanor,  and  it  may  commence  actions  to  restrain 
and  abate  nuisances,  and  to  enforce  its  orders  and  regulations. 

A  careful  examination  of  the  two  acts  shows  that  there  is  no  pro- 
vision for  a  hearing  before  the  board  on  the  part  of  any  person  who 
is  charged  with  maintaining  a  nuisance  upon  his  premises.  The  right 
to  such  a  hearing  is  not  expressly  given,  and  cannot  be  implied  from 
any  language  found  in  either  act,  or  from  the  nature  of  the  subjects 
dealt  with  in  the  acts.  Boards  of  health  and  other  like  boards  act 
summarily,  and  it  has  not  been  usual  anywhere  to  require  them  to  give 
a  hearing  to  any  person  before  they  can  exercise  their  jurisdiction  for 
the  public  welfare.  The  public  health  might  suffer  or  be  imperiled 
if  their  action  could  be  delayed  until  a  protracted  hearing  could  be 
brought  to  a  termination.  There  is  no  provision  in  the  acts  for  calling 
or  swearing  witnesses,  and  there  is  no  general  law  giving  them  power 
to  do  so.  Section  843  of  the  Code  of  Civil  Procedure-''  is  not  appli- 
cable to  such  a  case,  for  the  reason  that  the  board  is  not  authorized  by 
law  to  hear  testimony  or  take  the  oral  examination  of  witnesses. 

The  question  may  be  asked,  how  can  these  provisions  conferring 
powers  upon  boards  of  health  to  interfere  with  and  destroy  property, 
and  to  impose  penalties  and  create  crimes,  stand  with  the  Constitution, 
securing  to  every  person  due  process  of  law  before  his  property  or 
personal  rights  or  liberty  can  be  interfered  with?  The  answer  must 
be  that  they  could  not  stand  if  we  were  obliged  to  hold  that  the  acts 
referred  to  made  the  determinations  of  the  board  of  health  as  to  the 
existence  of  nuisances  final  and  conclusive  upon  the  owners  of  the 
premises  where  they  are  alleged  to  exist.  Before  such  a  final  and  con- 
clusive determination  could  be  made,  resulting  in  the  destruction  of 
property,  the  imposition  of  penalties  and  criminal  punishments,  the 
party  proceeded  against  must  have  a  hearing,  not  as  matter  of  favor, 
but  as  matter  of  right ;  and  the  right  to  a  hearing  must  be  found  in 
the  acts.  Stuart  v.  Palmer,  74  N.  Y.  183,  30  Am.  Rep.  239.  As  we 
have  said,  there  is  no  provision  of  law  giving  any  party  a  right  to  a 
judicial  hearing  before  these  boards,  and  there  is  no  provision  making 
their  determination  final.  If  the  decisions  of  these  boards  were  final 
and  conclusive,  even  after  a  hearing,  the  citizen  would  in  many  cases 

2  0  Authorizing  the  administration  of  oaths  by  certain  officials. 


142  ADMINISTRATIVE   POWEIl  AND   ACTION.  (Part    1 

hold  his  property  subject  to  the  judgments  of  men  holding  ephemeral 
positions  in  municipal  bodies  and  boards  of  health,  frequently  unedu- 
cated, and  generally  unfitted  to  discharge  grave  judicial  functions. 
Boards  of  health,  under  the  acts  referred  to,  cannot,  as  to  any  existing 
state  of  facts,  by  their  determination  make  that  a  nuisance  which  is  not 
in  fact  a  nuisance.  They  have  no  jurisdiction  to  make  any  order  or 
ordinance  abating  an  alleged  nuisance  unless  there  be  in  fact  a  nuisance. 
It  is  the  actual  existence  of  a  nuisance  which  gives  them  jurisdiction 
to  act.  Their  acts  declaring  nuisances  may  be  presumptively  valid 
until  questioned  or  assailed,  for  the  same  reasons  which  give  presump- 
tive legality  to  the  acts  of  official  persons  under  the  maxim,  "omnia 
prassumuntur  legitime  facta  donee  probetur  in  contrarium." 

What  operation,  then,  does  the  order  or  ordinance  of  the  board  of 
health  have  under  these  acts?  The  nuisance  actually  existing,  and  the 
jurisdiction  having  been  regularly  exercised,  the  order  or  ordinance 
has  all  the  operation  and  effect  provided  in  the  act,  and  the  persons 
who  abate  the  nuisance  have  the  protection  which  they  would  not  have 
as  private  persons  abating,  not  a  private  nuisance,  especially  injurious 
to  them,  but  a  public  nuisance  injurious  to  the  general  public.  It  ma\ 
be  said  that  if  the  determination  of  a  board  of  health  as  to  a  nuisance 
be  not  final  and  conclusive,  then  the  members  of  the  board,  and  all 
persons  acting  under  their  authority  in  abating  the  alleged  nuisance, 
act  at  their  peril ;  and  so  they  do,  and  no  other  view  of  the  law  would 
give  adequate  protection  to  private  rights.  They  should  not  destroy 
property,  as  a  nuisance  unless  they  know  it  to  be  such,  and,  if  there 
be  doubt  whether  it  be  a  nuisance  or  not,  the  board  should  proceed  b} 
action  to  restrain  or  abate  the  nuisance,  and  thus  have  the  protection 
of  a  judgment  for  what  it  may  do. 

It  may  further  be  asked,  what,  under  this  view  of  the  law,  is  the 
remedy  of  the  owner  of  property  threatened  with  destruction  or  actually 
destroyed  as  a  nuisance?  He  may  have  his  action  in  equity  to  re- 
strain the  destruction  of  his  property  if  the  case  be  one  where  a  court 
of  equity  under  equitable  rules  has  jurisdiction,^^  or  he  may  bring  a 
common-law  action  against  all  the  persons  engaged  in  the  abatement  of 
the  nuisance  to  recover  his  damages,  and  thus  he  will  have  due  process 
of  law;  and,  if  he  can  show  that  the  alleged  nuisance  does  not  in  fact 
exist,  he  will  recover  judgment,  notwithstanding  the  ordinance  of 
the  board  of  health.  Thus  the  views  we  take  of  these  acts  and  similar 
acts  conferring  powers  upon  local  officers  to  proceed  summarily  upon 
their  own  view  and  examination  furnish  adequate  protection  to  boards 
of  health,  to  the  public,  and  to  property  owners,  and,  while  these  views 
are  not  supported  by  all  the  decided  cases  upon  the  subject,  they  have 
the  support  of  the  best  reasons  and  of  ample  authority. 

In  Cooley's  Constitutional  Limitations  (5th  Ed.)  at  page  722,  in  a 
note,  the  learned  author,  speaking  of  boards  of  health,  says :   "Though 

21  See  Goldeu  v.  Department  of  Health,  21  App.  Div.  420,  47  X.  Y.  Supp. 
623  (1897). 


4 


Ch.  4)  NOTICE.  143 

they  cannot  be  vested  with  authority  to  decide  finally  upon  one's  right 
to  property,  where  they  proceed  to  interfere  with  it  as  constituting 
a  danger  to  health,  yet  they  are  vested  with  quasi  judicial  power  to  de- 
cide upon  what  constitutes  a  nuisance,  and  all  presumptions  favor  their 
actions."  And  again,  at  page  743,  in  a  note,  citing  authorities,  he  says  : 
"Whether  any  particular  thing  or  act  is  or  is  not  permitted  by  the  law 
of  the  state  must  always  be  a  judicial  question,  and  therefore  the 
question  what  is  and  what  is  not  a  public  nuisance  must  be  judicial,  and 
it  is  not  competent  to  delegate  it  to  local  legislative  or  administrative 
boards.  The  local  declaration  that  a  nuisance  exists  is,  therefore,  not 
conclusive,  and  the  party  concerned  may  contest  the  fact  in  the  courts." 

Dillon,  in  his  work  on  Municipal  Corporations  (4th  Ed.)  §  3T4,  says 
the  authority  to  prevent  and  abate  nuisances  and  its  summary  exercise 
"may  be  constitutionally  conferred  on  the  incorporated  place,  and  it 
authorizes  its  council  to  act  against  that  which  comes  within  the  legal 
nature  of  a  nuisance;  but  such  power  conferred  in  general  terms 
cannot  be  taken  to  authorize  the  extrajudicial  condemnation  and  de- 
struction of  that  as  a  nuisance  which  in  its  nature,  situation,  or  use  is 
not  such." 

In  Wood's  Law  of  N'uisances  (section  740)  it  is  said  that,  where  the 
public  authorities  abate  a  nuisance  under  authority  of  a  city  ordinance, 
"they  are  subject  to  the  same  perils  and  liabilities  as  an  individual  if 
the  thing  abated  is  not  in  fact  a  nuisance.  *  *  *  it  would,  indeed, 
be  a  dangerous  power  to  repose  in  municipal  corporations  to  permit 
them  to  declare  by  ordinance  or  otherwise  anything  a  nuisance  which 
the  caprice  or  interests  of  those  having  control  of  its  government  might 
see  fit  to  outlaw,  without  being  responsible  for  all  the  consequences ; 
and,  even  if  such  power  is  expressly  given  by  the  Legislature,  it  is 
utterly  inoperative  and  void,  unless  the  thing  is  in  fact  a  nuisance,  or 
was  created  or  erected  after  the  passage  of  the  ordinance,  and  in  de- 
fiance of  it." 

In  Yates  v.  Milwaukee,  10  Wall.  497,  19  L.  Ed.  984,  Mr.  Justice 
Millef  said:  "It  is  a  doctrine  not  to  be  tolerated  in  this  country  that 
a  municipal  corporation  without  any  general  laws,  either  of  the  city  or 
the  state,  within  which  a  given  structure  can  be  shown  to  be  a  nui- 
sance, can,  by  its  mere  declaration  that  it  is  one,  subject  it  to  removal 
by  any  person  supposed  to  be  aggrieved,  or  even  by  the  city  itself. 
This  would  place  every  house,  every  business,  and  all  the  property  of 
the  city  at  the  uncontrolled  will  of  the  temporary  local  authorities." 

In  Hutton  v.  City  of  Camden,  39  N.  J.  Law,  122,  23  Am.  Rep.  203, 
it  was  held  that  the  action  of  the  board  of  health  could  not  determine 
conclusively  that  a  nuisance  exists,  and  that  such  a  conclusive  deter- 
mination could  be  made  only  in  a  regular  course  of  law  before  an 
established  court  of  law  or  equity. 

In  Underwood  v.  Green,  42  N.  Y.  140,  the  action  was  to  recover  the 
value  of  dead  hogs  removed  under  the  direction  of  the  city  sanitary 
inspector,  an  officer  clothed  with  judicial  discretion,  and  acting  under  a 


144  ADMINISTRATIVE   TOWER   AND   ACTION.  (Part    1 

city  ordinance  declaring  that  all  dead  animals  "be  forthwith  removed 
and  disposed  of  by  removal  beyond  the  limits  of  the  city  or  otherwise, 
so  as  most  effectually  to  secure  the  public  health";  and  it  was  held 
that  it  must  be  shown,  in  order  to  justify  the  act,  that  the  dead  hogs 
were  or  would  become  in  some  way  dangerous  or  deleterious  to  public 
health. 

The  following  are  also  instructive  authorities  upon  the  same  sub- 
ject: Mayor,  etc.,  of  New  York  v.  Board  of  Health,  31  How.  Prac. 
385  ;^  Clark  v.  Mayor,  etc.,  13  Barb.  32 ;  Rogers  v.  Barker,  31  Barb. 
447 ;  Coe  v.  Schultz,  47  Barb.  64 ;  Lawton  v.  Steele,  119  N.  Y.  236, 
23  N.  E.  878,  7  L.  R.  A.  134,  16  Am.  St.  Rep.  813. 

The  result  of  these  authorities  is  that  whoever  abates  an  alleged 
nuisance,  and  thus  destroys  or  injures  private  property,  or  interferes 
with  private  rights,  whether  he  be  a  public  officer  or  private  person, 
unless  he  acts  under  the  judgment  or  order  of  a  court  having  jurisdic- 
tion, does  it  at  his  peril ;  and  when  his  act  is  challenged  in  the  regular 
judicial  tribunals  it  must  appear  that  the  thing  abated  was  in  fact  a 
nuisance.  This  rule  has  the  sanction  of  public  policy,  and  is  founded 
upon  fundamental  constitutional  principles. 

The  way  is  now  clear  to  the  disposition  of  this  case.  The  board  of 
health  did  act,  and  had  a  right  to  act.  Upon  its  own  inspection  and 
knowledge  of  the  alleged  nuisance.  It  was  not  obliged  to  hear  any 
party.  It  could  obtain  its  information  from  any  source  and  in  any 
way,  and  hence  its  determination  upon  the  question  of  nuisance  is 
not  reviewable  by  certiorari.  People  v.  AlcCarthy,  102  N.  Y.  630,  8 
N.  E.  85.     *     *     * 

Our  conclusion,  therefore,  is  that  the  judgment  of  the  general  term 
should  be  affirmed,  with  costs.     All  concur.-- 

22  Finch,  J.,  iu  Board  of  riealth  of  City  of  Yonkers  v.  Copcntt,  140  N.  Y. 
12,  35  N.  E.  443,  23  L.  R.  A.  485  (1S03),  an  action  to  recover  a  penalty  for 
a  violation  of  an  ordinance  of  the  board  of  health,  said: 

"The  appellant  also  objects  that  the  ordinance,  which  was  directed  against 
him  specially,  and  affected  his  property  rights,  was  invalid,  because"  passed 
without  notice  to  him  and  an  opportunity  to  be  heard.  In  another  phase 
of  this  case,  coming  to  us  on  certiorari  for  a  review  of  the  action  of  the 
board,  we  liave  decided  that  a  hearing  was  not  necessary,  because  the  ques- 
tion of  nuisance,  or  not,  lies  at  the  foundation  of  the  jurisdiction,  and  the 
party  proceeded  against  may  always  try  that  vital  and  decisive  question  in 
the  courts,  and  is  not  foreclosed  by  the  order  made.  This  case  Avell  Illus- 
trates the  doctrine  in  actual  operation.  The  plaintiff  did  not  rely  on  its  or- 
ders or  ordinances  alone,  or  the  presumptions  which  they  raised,  but  pro- 
ceeded to  allege  and  prove  that  the  dam  and  pond  were  a  public  nuisance. 
The  defendant  took  issue  upon  that,  and  the  battle  was  fought  out  over  that 
question.  The  defendant  has  had  his  day  in  court,  ample  and  abundant 
chance  to  be  heard,  better  and  more  complete  than  any  hearing  which  the 
board  could  give.  But  we  have  already  decided  the  question  adversely  to 
the  defendant's  contention,  and  nothing  needs  to  be  added  to  the  discussion 
which  it  has  received." 

See  Harrington  v.  Board  of  Aldermen  of  Providence,  20  R.  I.  233,  38  Atl. 
1,  3S  L.  R.  A.  305  (1897);  Hartmau  v.  Wilmington,  1  Marv.  (Del.)  215,41 
Atl.  74  (1894). 

After  an  order  has  been  made,  notice  must  be  given  to  the  person  affected 


Ch.  4)  NOTICE.  145 

HEALTH  DEPARTMENT  OF  CITY  OF  NEW  YORK  v. 
RECTOR,  ETC,  OF  TRINITY  CHURCH. 

(Court  of  Appeals  of  New  York,  1895.     145  N.  Y.  32,  39  N.  E.  833,  27  L.  R. 
A.  710,  45  Am.  St.  Rep.  579.) 

Appeal  from  the  Common  Pleas  of  New  York  City  and  County, 
General  Term. 

Action  by  the  Health  Department  of  the  City  of  New  York  against 
the  Rector,  Churchwardens,  and  Vestrymen  of  Trinity  Church,  to  re- 
cover a  penalty  for  failure  to  supply  the  floors  of  a  tenement  house  with 
Croton  or  other  water.  From  a  judgment  of  the  General  Term  of 
the  Court  of  Common  Pleas  of  New  York  City  and  County  (17  N.  Y. 
Supp.  510)  reversing  a  judgment  for  plaintiff,  the  latter  appeals.  Re- 
versed. 

The  cause  of  action  is  founded  upon  section  663  of  the  consolida- 
tion act  (Laws  1882,  c.  410),  relating  to  the  city  of  New  York,  as  such 
section  was  amended  by  chapter  84  of  the  Laws  of  1887.  After  making 
various  provisions  in  prior  sections  for  the  proper  construction  and 
ventilation  of  tenement  houses  in  the  city  of  New  York,  the  Legisla- 
ture, by  the  amendment  of  1887,  enacted  as  follows :  "Sec.  663.  Every 
such  house  erected  after  May  14th,  1867,  or  converted,  *  *  *  shall 
have  Croton  or  other  water  furnished  in  sufficient  quantity  at  one  or 
more  places  on  each  floor,  occupied  or  intended  to  be  occupied  by  one 
or  more  families;  and  all  tenement  houses  shall  be  furnished  with  a 
like  supply  of  water  by  the  owners  thereof  whenever  they  shall  be  di- 
rected so  to  do  by  the  board  of  health.  But  a  failure  in  the  general 
supply  of  water  by  the  city  authorities  shall  not  be  construed  to  be  a 
failure  on  the  part  of  the  owner,  provided  that  proper  and  suitable 

with  it,  before  lie  can  be  charged  with  its  violation.  State  v.  Butts,  3  S.  D. 
577,  54  N.  W.  603.  19  L.  R.  A.  725    (1893). 

See  S.  W.  Peabody,  Historical  Study  of  Legislation  Regarding  Public 
Health  in' New  York  and  Massachusetts  (Chicago,  1909)  pp.  94-97: 

"Notice  and  hearing  does  not  appear  in  New  York  laws  as  essential  to  the 
enforcement  of  orders  of  a  board  of  health  in  regard  to  nuisances  until  1850. 
In  that  year  the  law  for  New  York  City  (Laws  N.  Y.  1850.  c.  275,  tit.  3,  art. 
1,  §§  1,  3)  required  the  city  inspector,  upon  complaint  being  made  of  any 
trade  as  a  nuisance  and  detrimental  to  health,  to  give  notice  to  the  persons 
concerned  to  show  cause  before  the  board  of  health  why  such  trade  should 
not  be  discontinued.  The  order  of  the  board  of  health,  given  after  a  hearing, 
was  final  and  conclusive,  and  disobedience  to  such  orders  was  made  a  mis- 
demeanor. When  the  law  was  brought  before  the  courts  for  interpretation, 
they  held  that  a  resolution  of  the  board  of  health  directing  a  nuisance  to  be 
abated  was  void  without  such  previous  notice  and  hearing.  People  v.  Bd. 
H.  N.  Y.  City,  33  Barb.  (N.  Y.)  344  (1861).  In  cases  arising  under  the  law 
of  the  same  year  (1850)  applying  to  the  state  at  large,  which  made  no  men- 
tion of  notice  and  hearing,  it  was  held  (Reed  v.  People.  1  Parker,  Cr.  R. 
[N.  Y.]  481  [1854];  Rogers  v.  Barker,  31  Barb.  [N.  Y.]  447  [I860])  that  the 
power  to  make  regulations  for  the  removal  of  nuisances  did  not  include  the 
power  to  make  orders,  on  the  ground  that  'it  is  impossible  to  think  the  Leg- 
islature intended  to  confer  on  boards  of  health  power  to  make  an  adjudica- 
tion against  an  individual  without  notice  and  in  his  absence  *  *  *'  ia- 
Fk.Adm.Law. — 10 


146  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

appliances  to  receive  and  distribute  such  water  are  placed  in  said  house. 
Provided,  that  the  board  of  health  shall  see  to  it  that  all  tenement 
houses  are  so  supplied  before  January  first,  eighteen  hundred  and 
eighty-nine."     The  rest  of  the  section  is  not  material. 

It  appeared  upon  the  trial  that  the  defendant  was  the  owner  of  cer- 
tain houses  in  the  city  of  New  York,  known  as  "Numbers  59,  77,  84, 
and  86  Charlton  Street,"  and  on  the  20th  of  March,  1891,  the  plaintilif 
caused  to  be  served  on  the  agent  of  the  defendant  a  notice  requiring  the 
defendant,  in  conformity  with  the  provisions  of  the  Sanitary  Code, 
to  alter,  repair,  cleanse,  and  improve  the  premises  above  mentioned, 
and  directing  that  suitable  "appliances  to  receive  and  distribute  a  sup- 

volving  penalties,  and  that  'the  Tvegislature  never  designed  to  commit  power 
to  a  board  of  health  to  conclude  a  thing  was  a  nuisance  and  order  its  de- 
struction without  opportunity  to  be  heard.'  Nor  were  the  powers  of  city 
councils  acting  under  city  charters  interpreted  more  broadly.  Under  the 
charter  of  Syracuse  (Charter  of  Syracuse,  Laws  N.  Y.  1847,  e.  475;  Clark 
V.  Syracuse,  13  Barb.  [N.  Y.]  32  [1852])  it  was  held  that  the  city  council  had 
no  right,  'without  trial  or  notice  to  the  party  interested,  to  destroy  large  and 
valuable  property,  under  pretense  that  it  is  a  nuisance  endangering  the 
health  of  the  city,'  and  that  an  injunction  to  restrain  the  board  would  be 
given.  None  of  these  cases  reached  the  Court  of  Appeals,  but  the  lower 
courts  were  quite  consistently  of  the  same  opinion — that  notice  and  hearing 
were  necessary  to  the  enforcement  of  orders. 

"The  laws  of  18G6  and  18U7  establishing  the  metropolitan  board  of  health 
brought  the  whole  subject  of  quasi  judicial  powers  prominently  before  the 
courts.t  Section  14  of  the  law  of  1866  (Laws  1866,  c.  74)  especially  was  at- 
tacked as  being  unconstitutional.  In  the  course  of  the  decisions  rendered 
the  courts  declared  that  the  quasi  judicial  functions  conferred  upon  the 
board  to  issue  warrants,  give  notice  and  hearing,  and  compel  witnesses  (Law^ 
N.  Y.  1867,  c.  956)  did  not  constitute  a  court,  and  that  redress  from  its  ac- 
tions could  always  be  had  in  the  regular  tribunals.  Cooper  v.  Schultz,  32 
How.  Prac.  (N.  Y.)  107;  Coe  v.  Schultz,  47  Barb.  (N.  Y.)  64;  Reynolds 
V.  Schultz,  34  How.  Prac.  (N.  Y.)  147:  Met.  Bd.  v.  Heister,  37  N.  Y.  661. 
See,  also.  Golden  v.  H.  Dept..  21  App.  Div.  420,  47  N.  Y.  Supp.  623.  In  the 
only  case  among  those  brought  against  the  metropolitan  board  in  which  the 
question  of  hearing  was  dehuitely  brought  up   (Reynolds  v.  Schultz),  it  was 

«.  t  Laws  N.  Y.  1806,  c.  74;  Laws  1866,  c.  686;  Laws  1867,  c.  700;  Laws  1807, 
e.  956.  In  the  cases  brought  against  the  metropolitan  board  of  health  the  attack 
was  made  on  thi-ee  grounds  :  (1)  That  the  law  delegated  legislative  power  to  an 
appointed  board ;  (2)  that  it  delegated  judicial  authority ;  (3)  that  the  summary 
powers  granted  to  abate  nuisances  were  contrary  to  the  constitutional  requirements 
of  "due  process"  and  trial  by  jury.  In  upholding  the  constitutionality  of  the  law 
the  courts  held  with  regard  to  these  objections:  (1)  That  the  Legislature  could 
create  new  sanitary  districts  with  appointive  officers  (Met.  Bd.  v.  Heister,  'M 
N.  Y.  &)!  [1868]).  (2)  That  the  power  to  make  regulations  was  not  true  legisla- 
tion, such  regulations  being  in  the  nature  of  administrative  by-laws  (Cooper  w 
Schultz,  32  How.  I'rac.  [N.  Y.]  107  [1866];  Coe  v.  Schultz,  47  Barb.  [N.  Y.]  04 
[1866]);  but  for  the  board  to  declare  a  thing  a  nuisance  which  was  not  such  at 
common  law  was  legislative  and  ultra  vires  (Mavor  v.  Bd.  of  H..  31  How.  Pnie. 
[N.  Y.]  3.85  [1860]  ;  Schuster  v.  Met.  Bd.,  49  Barb.  [N.  Y.]  4.50  [1867]).  It  is 
to  be  noted  in  this  connection  that,  wbile  the  regulations  of  boards  of  health  are 
not  strictly  legislation,  they  may  become  such  by  adoption,  and  the  law  may  l)c' 
built  up  in  great  part  by  such  regulations.  (3)  That,  while  it  was  within  the 
province  of  the  Legislature  to  establish  new  courts  and  fix  their  jurisdiction,  tlv 
quasi  judicial  powers  conferred  on  the  board  did  not  constitute  it  a  court  (Met. 
Bd.  V.  Heister ;  Cooper  v.  Schultz).  (4)  That  abatement  hy  the  board  was  not . 
a  taking  of  property  without  due  process  (Cooper  v.  Schultz;  Weil  v.  Schultz,  33 
How.  Prac.  [N.  Y.]  7 ;  Coe  v.  Schultz),  and  was  less  objectionable  than  abatement 
by  private  persons  (Coe  v.  Schultz).  (5)  That  a  jury  was  not  customary  or  nec- 
essary for  determining  the  fact  of  a  nuisance  (Reynolds  v.  Schultz ;  Met.  Bd.  v. 
Heister). 


Ch.  4)  NOTICE.  147 

ply  of  water  for  domestic  use  be  provided  on  the  top  floor  of  No.  59 ; 
the  basement,  first  and  second  floors  of  No.  77 ;  the  basement,  first,  sec- 
ond, and  third  floors  of  No.  84;  and  the  basement  and  attic  of  86." 
And  the  defendant  was  required  to  comply  with  the  requirements  with- 
in five  days  from  the  receipt  of  the  notice,  and  it  was  also  stated  in  the 
notice  that  any  application  for  a  necessary  extension  of  time,  or  for  the 
suspension  of  any  part  of  the  requirements  contained  in  the  written 
notice,  should  be  made  to  the  health  department,  at  the  time  and  place 
designated  in  the  notice. 

This  action  was  brought  against  defendant  as  owner  of  houses  Nos. 
77  and  84  Charlton  street.  The  defendant  claims  that  the  houses  in 

held  that  upon  refusal  to  fix  a  day  for  a  hearing  of  the  party  affected  a 
mandamus  would  lie,  and  that  it  was  a  matter  of  grave  doubt  whether  the 
Legislature  could  'constitutionally  authorize  any  person  or  body  *  *  * 
to  destroy  property  *  *  *  without  providing  for  a  hearing  before  con- 
demnation, or  compensation.' 

"Such  notice  antl  liearing  were  not  explicitly  required  in  the  later  general 
laws  for  local  boards,  although  the  power  to  make  orders  for  the  abatement 
of  nuisances  was  given,  as  well  as  other  judicial  powers,  i.  e.,  to  issue  war- 
rants and  subpoenas,  compel  witnesses,  administer  oaths,  with  the  same  pow- 
ers as  justices  of  the  peace  in  civil  actions,  and  prescribe  and  impose  penal- 
ties for  violations  of  or  failure  to  comply  with  orders  or  regulations   (Laws 
i   N.  Y.  1893,  c.  661,  §  21) ;    but  for  many  years  the  courts  held  that  such  no- 
j  tice  was  essential  and  was  implied  in  the  statute  (People  v.  Bd.  H.  Seneca 
'   Falls,  .58  Hun,  oiK").  12  N.  Y.  Supp.  .561  [18911 :    People  v.  Wood,  (j2  Hun,  131, 
'   16  N.  Y.  Supp.  664  [1891]).     'Tlie  statute  does  not  in  woi'ds  require  notice, 
I  but  this   is  clearly   implied.     *     *     *     The  accused  must  be  enabled  to  de- 
!  fend  himself  before  final  judgment.' 

j  "But  although  the  necessity  for  notice  and  hearing  had  been  the  steady 
I  doctrine  of  the  lower  courts,  when  the  matter  came  before  the  Court  of  Ap- 
i  peals  after  the  cholera  scare  of  1892,t  the  opposite  view  was  taken — that  no- 
j  tice  and  hearing  by  the  board  of  health  were  neither  implied  or  essential;  that 
I  there  could  be  no  final  determination  as  to  the  fact  of  the  nuisance,  except  by 
I  a  regular  court,  nor  without  the  appearance  of  the  parties  in  such  a  court.  'A 
!  hearing  was  not  necessary  because  the  question  of  nuisance  or  not  lies  at  the 
i  foundation  of  the  jurisdiction,  and  the  party  proceeded  against  may  always  try 
j  that  vital  and  decisive  question  in  the  courts,  and  is  not  foreclosed  by  the  or- 
1  der  made.'  The  same  doctrine  was  laid  down  again  in  the  famous  case  of  N. 
;  Y.  H.  Dept.  V.  Trinity  Church,  and  moi'e  emphatically  in  the  later  case  of 
i  Cartwright  v.  Cohoes  N.  Y.  Dept.  v.  Trinity  Church,  145  N.  Y.  32,  30  N.  E. 
I  83.3.  27  L.  R.  A.  710  (1895);  Cartwright  v.  Cohoes,  165  N.  Y.  631,  59  N.  E. 
;  1120  (1901).  'The  board  was  not  obliged  to  hear  anybody.  It  could  have 
i  acted  upon  its  own  inspection  and  knowledge  of  the  premises.'  But  hand  in 
I  hand  with  the  advancement  of  the  doctrine  that  notice  and  hearing  by  a 
I  board  of  health  were  not  necessary  nor  implied  in  the  law  went  the  other 
!  doctrine  that  the  question  of  the  fact  of  the  existence  of  the  nuisance  was 
1  always  subject  to  investigation  in  court  and  that  boards  of  health  or  health 
i  officers  acted  at  their  peril  in  abating  a  nuisance  without  the  sanction  of  a 
i  court  decision.  Where,  however,  even  at  the  present  time,  local  charters  re- 
;  quire  notice  and  hearing  by  the  board  before  the  abatement  of  nuisances, 
■  lack  of  such  notice  will  be  held  to  invalidate  the  action  of  the  board.  Eck- 
;  hardt  v.  Buffalo,  19  App.  Div.  1,  46  N.  Y.  Supp.  204  (1897)  ;  also  Cushiug  v. 
I  Bd.  H.  Buffalo,  13  N.  Y.  St.  Rep.  783   (1887)." 

j  +  People  V.  Bd.  H.  Yonkers,  140  N.  Y.  1,  35  N.  E.  320,  23  L.  R.  A.  481,  37 
I  Am.  St.  Rep.  .522  (1893):  '"When  pestilence  is  forcing  a  way  into  our  harbors, 
j  and  danger  and  death  approach  through  all  rot  and  filth,  it  is  the  condition  with 
,  which  boards  of  health  must  grapple,  and  the  condition  which  must  be  abated  and 
I  removed  without  regard  to  the  question  who  caused  the  trouble."  Bd.  H.  v.  Cop- 
,cutt,  140  N.  Y.  12,  35  N.  E.  443,  23  L.  R.  A.  485  (1893). 
i 


148  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

question  were  not  "tenement"  houses,  as  that  word  is  popularly  used; 
that  they  were  houses  constructed  many  years  ago  as  dwelling  houses, 
and  they  have  never  been  altered,  with  reference  to  their  internal  ar- 
rangement, so  as  to  convert  them  into  what  would  popularly  be  called 
"tenement  houses."  They  were  old-fashioned  dwelling  houses — two 
story,  attic,  and  basement.  There  were  hydrants  in  the  backyards, 
accessible  to  all  tenants  of  the  houses.  But  the  proof  in  the  case  shows 
at  No.  77  Charlton  street  there  were  three  families,  and  in  No.  8-i  there 
were  six  families;  and  the  houses  came  clearly  and  distinctly  under 
the  definition  of  "tenement  houses,"  as  enacted  by  section  66G  of  the 
consolidation  act,  as  amended  by  the  Laws  of  1887  (chapter  84,  p.  100.) 

It  is  claimed  on  the  part  of  the  defendant  that  the  buildings  are  in 
a  transition  neighborhood,  which  will  be  shortly  required  for  business 
structures ;  that  they  are  not  in  a  neighborhood  where  all  or  many  of 
the  large  buildings,  which  are  known  as  "tenement  houses,"  m  the 
popular  meaning  of  the  word,  are  situated ;  and  that  these  houses  are 
not  really  within  the  reason  of  the  statute.  The  defendant  offered  on 
the  trial  to  give  testimony  as  to  the  necessary  cost  of  complying  with 
the  order  of  the  board  of  health,  which  was  excluded,  and  the  defend- 
ant excepted.  Defendant  also  offered  to  prove  that  the  introduction  of 
appliances  to  furnish  water  on  each  floor,  and  the  required  sinks  and 
waste  pipes  to  connect  with  the  sewer,  would  cause  great  danger  of 
injury  to  the  property,  through  the  water  in  the  pipes  freezing  and  the 
pipes  bursting  in  the  winter  season ;  also,  that  no  complaints  had  been 
made  to  the  defendant  corporation  by  the  occupants  of  these  houses,  in 
reference  to  the  want  of  water.  All  this  evidence  was  excluded,  under 
the  objection  of  the  plaintiff,  and  upon  the  exception  of  the  defendant. 

The  general  term  of  the  common  pleas  granted  leave  to  plaintiff  to 
appeal  from  its  order  of  reversal  and  granting  a  new  trial,  on  the 
ground  that  a  question  of  law  was  involved,  which  ought  to  be  re- 
viewed by  this  court. 

Peckham,  J.  (after  stating  the  facts). =^  *  '■'  *  Assuming  that 
this  act  is  a  proper  exercise  of  the  power,  in  its  general  features,  we 
do  not  think  that  it  can  be  regarded  as  invalid  because  of  the  fact  that 
it  will  cost  money  to  comply  with  the  order  of  the  board,  for  which 
the  owner  is  to  receive  no  compensation,  or  because  the  board  is  en- 
titled to  make  the  order,  under  the  provisions  of  the  act,  without  no- 
tice to  and  a  hearing  of  the  defendant.  As  to  the  latter  objection,  it 
may  be  said  that,  in  enacting  what  shall  be  done  by  the  citizen  for 
the  purpose  of  promoting  the  public  health  and  safety,  it  is  not  usual- 
ly necessary  to  the  validity  of  legislation  upon  that  subject  that  he  shall 
be  heard  before  he  is  bound  to  comply  with  the  direction  of  the  Legis- 
lature. People  V.  Board  of  Health,  140  N.  Y.  1,  6,  35  N.  E.  320,  23 
L.  R.  A.  481,  37  Am.  St.  Rep.  522.     The  Legislature  has  power,  and 

2  5  Only  a  portion  of  this  case  is  printed. 


Ch.4) 


149 


has  exercised  it  in  countless  instances,  to  enact  general  laws  upon 
the  subject  of  the  public  health  or  safety  without  providing  that  the 
parties  who  are  to  be  affected  by  those  laws  shall  first  be  heard  before 
they  shall  take  effect  in  any  particular  case. 

So  far  as  this  objection  of  want  of  notice  is  concerned,  the  case  is 
not  materially  altered  in  principle  from  what  it  would  have  been  if 
the  Legislature  had  enacted  a  general  law  that  all  owners  of  tenement 
houses  should,  within  a  certain  period  named  in  the  act,  furnish  the 
water  as  directed.  Indeed,  this  act  does  contain  such  a  provision,  but 
the  plaintiff"  has  not  proceeded  under  it.  If,  in  such  case,  the  enforce- 
ment of  the  direct  command  of  the  Legislature  were  not  to  be  preceded 
by  any  hearing  on  the  part  of  any  owner  of  a  tenement  house,  no  pro- 
vision of  the  state  or  federal  Constitution  would  be  violated.  The 
fact  that  the  Legislature  has  chosen  to  delegate  a  certain  portion  of  its 
power  to  the  board  of  health,  and  to  enact  that  the  owners  of  certain 
tenement  houses  should  be  compelled  to  furnish  this  water  after  the 
board  of  health  had  so  directed,  would  not  alter  the  principle,  nor 
would  it  be  necessary  to  provide  that  the  board  should  give  notice  and 
afford  a  hearing  to  the  owner  before  it  made  such  order.  I  have 
never  understood  that  it  was  necessary  that  any  notice  should  be  given 
under  such  circumstances  before  a  provision  of  this  nature  could  be 
!   carried  out.     *     »     * 

I  The  citizen  cannot,  under  this  act,  be  punished  in  any  way,  nor  can 
I  any  penalty  be  recovered  from  him  for  an  alleged  noncompliance  with 
I  any  of  its  provisions,  or  with  any  order  of  the  board  of  health,  without 
i  a  trial.  The  punishment  or  penalties  provided  for  in  section  665  can- 
not be  enforced  without  a  trial  under  due  process  of  law,  and  upon 
such  trial  he  has  an  opportunity  to  show  whatever  facts  would  consti- 
tute a  defense  to  the  charge ;  to  show,  in  other  words,  that  he  did  not 
violate  the  statute,  or  the  order  of  the  board,  or  that  the  statute  itself 
or  the  order  ivas  unreasonable  and  illegal.'^  He  might  show  that 
the  house  in  question  was  not  a  tenement  house,  within  the  provision 
of  the  act,  or  that  there  was  a  supply  of  water  as  provided  for  by  the 
act,  or  any  other  fact  which  would  show  that  he  had  not  been  guilty  of 
an  offense  with  regard  to  the  act.  City  of  Salem  v.  Eastern  R.  Co., 
98  Mass.  431,  447,  96  Am.  Dec.  650.  The  mere  fact,  however,  that 
the  law  cannot  be  enforced  without  causing  expense  to  the  citizen  who 
comes  within  its  provisions,  furnishes  no  constitutional  obstacle  to 
such  enforcement,  even  without  previous  notice  to  and  a  hearing  of 
the  citizen.  What  is  the  propriety  of  a  hearing,  and  what  would 
be  its  purpose?  His  property  is  not  taken  without  due  process  of  law, 
within  any  constitutional  sense,  when  the  enforced  compliance  with 
certain  provisions  of  the  statute  may  result  in  some  reasonable  ex- 

2c  The  words  italicized  are  not  found  in  the  report  of  the  case  in  the  North- 
eastern Reporter. 


150  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

pense  to  himself.  Any  defense  which  he  may  have  is  available  up- 
on any  attempt  to  punish  him,  or  to  enforce  the  provisions  of  the 
law.     *     *     *-'' 


CITY  OF  SALEM  v.  EASTERN  R.  Co. 

(Supreme  .Tudicial  Court  of  Massachusetts,  1868,    98  Mass.  431,  00  Am.  Dec. 

050.) 

Contract,  to  recover  $2,363. 8G,  with  interest  from  the  date  of  de- 
mand, expended  by  the  plaintiff  in  digging  a  canal  for  the  purpose  of 
abating  a  nuisance  in  the  millpond  in  Salem. 

Wells,  J.-®  *  *  *  3.  The  proceedings  of  the  board  of  health 
are  said  to  be  defective,  because  taken  without  previous  notice  to  the 
defendants  and  opportunity  to  be  heard.  The  evidence  tended  to 
show  that  the  defendants  were  notified  of  the  pendency  of  proceedings, 
and  of  the  action  taken  by  the  board  of  health  from  time  to  time; 
but  there  was  no  such  notice  beforehand  as  would  give  the  defendants 
an  opportunity  to  appear  and  be  heard  upon  the  contemplated  action 
of  the  board,  and  there  was  no  hearing  upon  any  of  the  questions 
before  them. 

The  statute  does  not  require  any  previous  notice.  Notice  must  be 
given  of  general  regulations  prescribed  by  the  board  of  health  under 
sections  5  and  6  [Gen.  St.  1860,  c.  26],  before  parties  can  be  held  in 
fault  for  a  disregard  of  their  requirements.  But,  although  such  gen- 
eral regulations  may  seriously  interfere  with  the  enjoyment  of  private 
property,  and  disturb  the  exercise  of  valuable  private  rights,  no  pre- 
vious notice  to  parties  so  to  be  affected  by  them  is  necessary  to  their 
validity.  They  belong  to  that  class  of  police  regulations  to  which 
all  individual  rights  of  property  are  held  subject,  whether  established 
directly  by  enactments  of  the  legislative  power,  or  by  its  authority 
through  boards  of  local  administration.  Baker  v.  Boston,  12  Pick. 
184,  193,  22  Am.  Dec.  421;  Commonwealth  v.  Tewksbury,  11  Mete. 
55  ;  Commonwealth  v.  Alger,  7  Cush.  53,  85  ;  Belcher  v.  Farrar,  8  Allen, 
325.  The  authority  of  the  board  of  health  in  respect  to  particular  nui- 
sances stands  upon  similar  ground.  Their  action  is  intended  to  be 
prompt  and  summary.  They  are  clothed  with  extraordinary  powers  for 
the  protection  of  the  community  from  noxious  influences  affecting  life 
and  health,  and  it  is  important  that  their  proceedings  should  be  em- 

2T  See  Chicago,  etc.,  R.  Co.  v.  Nebraska.  170  U.  S.  .57,  77,  18  Sup.  Ct.  513, 
521,  42  L.  Ed.  948  (1898)  :  "While  no  notice  may  have  been  given  to  the  rail- 
road companies  of  the  pendency  of  the  ordinance,  and  while  thoy  may  not 
have  been  invited  to  participate  in  the  proposed  legislation,  yet  they  had  an 
opportunity  to,  and  did  in  fact,  put  in  issue,  by  the  answer,  both  the  validity 
of  the  ordinance  and  the  reasonableness  of  the  amount  apportioned  to  them, 
respectively,  for  the  repair  of  the  viaduct  in  question." 

2  8  Only  a  portion  of  the  opinion  is  printed. 


Ch.  4)  NOTICE.  151 

barrassed  and  delayed  as  little  as  possible  by  the  necessary  observances 
of  formalities. 

Although  notice  and  opportunity  to  be  heard  upon  matters  affecting 
private  interests  ought  always  to  be  given  when  practicable,  yet  the 
nature  and  object  of  these  proceedings  are  such  that  it  is  deemed  to  be 
most  for  the  general  good  that  such  notice  should  not  be  essential  to 
the  right  of  the  board  of  health  to  act  for  the  public  safety.  Delay 
for  the  purpose  of  giving  notice,  involving  the  necessity  either  of  pub- 
lic notice  or  of  inquiry  to  ascertain  who  are  the  parties  whose  interests 
will  be  affected,  and  further  delay  for  such  hearings  as  the  parties 
may  think  necessary  for  the  protection  of  their  interests,  might  defeat 
all  beneficial  results  from  an  attempt  to  exercise  the  powers  conferred 
upon  boards  of  health.  There  are  many  cases  in  which  powers  of 
determination  and  action,  of  a  quasi  judicial  character,  are  given  to  of- 
ficers intrusted  with  duties  of  local  or  municipal  administration,  by 
which  not  only  the  property  but  the  lives  of  individuals  may  be  affected, 
and  which,  from  their  nature,  must  be  exercised,  finally  and  conclusive- 
ly, without  a  hearing,  or  even  notice  to  the  parties  who  may  be  affected. 
Of  this  class  are  the  authority  of  fire  wards  or  other  officers  to  direct 
buildings  to  be  demolished  to  prevent  the  spreading  of  fires  (Gen.  St. 
c.  24,  §  4;  Taylor  v.  Plymouth,  8  Mete.  462);  of  magistrates  to  re- 
quire aid  and  to  use  force,  armed  or  otherwise,  to  suppress  tumults 
(Gen.  St.  c.  164,  §§  4,  6) ;  of  the  mayor  or  other  officers  to  call  out  a 
military  force  for  like  purposes  (Gen.  St.  c.  13,  §  134;  Ela  v.  Smith, 
5  Gray,  121,  66  Am.  Dec.  356). 

The  necessity  of  the  case,  and  the  importance  of  the  public  interests 
at  stake,  justify  the  omission  of  notice  to  the  individual.  When  the 
statute  authorizing  the  proceedings  requires  no  notice,  their  validity 
without  notice  is  not  to  be  determined  by  the  apparent  propriety  of 
giving  notice  in  the  particular  case,  but  by  considerations  affecting 
the  whole  range  of  cases  to  which  the  statute  was  intended  to  ap- 
ply.     =1:      *      * 

6.  The  most  important  and  most  difficult  question  in  the  case  re- 
lates to  the  effect  of  the  orders  of  the  board  of  health  by  which  the 
existence  of  the  nuisance  was  "found  and  determined,"  and  that  it 
was  created  and  maintained  by  the  defendants,  and  which  also  directed 
its  removal  by  the  defendants. 

The  plaintiffs'  counsel  contend  that  the  proceedings  of  the  board  of 
health  are  quasi  judicial,  and  that  the  determinations  and  orders  made 
by  them  in  that  capacity  are  adjudications  conclusive  against  the  de- 
fendants upon  all  the  facts  involved  in  those  determinations.  If  this 
be  so,  the  defendants  are  precluded  from  denying  the  existence  and  al- 
leged cause  of  the  nuisance,  and  their  duty  to  remove  it.  We  do  not 
find  in  the  proceedings  of  the  board  of  health,  as  reported,  any  deter- 
mination by  the  board  relative  to  the  method  of  removal  which  was 
undertaken,  other  than  by  the  subsequent  adoption  of  a  report  stating 
the  cost  thereof,  and  that  the  trench  was  in  successful  operation.     The 


152  ADMINISTRATIVE   TOWEU  AND   ACTION.  (Part   1 

record  indicates  another  mode  quite  different  from  the  one  actually- 
adopted.  The  propriety  of  that  mode  of  removal,  the  reasonableness 
of  the  expenses,  and  the  success  or  failure  of  the  attempted  remedy, 
would  therefore  be  open  to  investigation  upon  either  view  of  the  case. 

But  the  court  are  of  opinion  that,  in  a  suit  to  recover  expenses  in- 
curred in  removing  a  nuisance,  when  prosecuted  against  a  party  on 
the  ground  that  he  caused  the  same,  but  who  was  not  heard,  and  had 
no  opportunity  to  be  heard,  upon  the  questions  before  the  board  of 
health,  such  party  is  not  concluded  by  the  findings  or  adjudications  of 
that  board,  and  may  contest  all  the  facts  upon  which  his  liability  is 
sought  to  be  established.  He  is  neither  party  nor  privy  to  those  ad- 
judications; he  has  no  right  of  appeal,  and  no  other  means  by  which 
to  revise  the  proceedings  or  to  correct  errors,  either  of  law  or  fact, 
therein.  Parties  similarly  situated  in  respect  to  judgments  in  courts 
of  law  may  impeach  them  collaterally.  Vose  v.  Morton,  4  Cush.  27, 
50  Am.  Dec.  750.  "It  is  an  essential  principle  of  natural  justice  that 
every  man  have  an  opportunity  to  be  heard  in  a  court  of  law,  upon 
every  question  involving  his  rights  or  interests,  before  he  is  aft'ected  by 
any  judicial  decision  of  the  question."  Commonwealth  v.  Cambridge, 
4  Mass.  627 ;  Bradstreet  v.  Neptune  Insurance  Co.,  3  Sumn.  600,  607, 
Fed.  Cas.  No.  1,793.  In  the  case  of  Belcher  v.  Farrar,  8  Allen,  325, 
328,  it  is  intimated  that  even  a  general  regulation,  adopted  by  a  board 
of  health  in  accordance  with  the  statute,  which  might  operate  to  render 
valueless  a  large  property  by  forbidding  the  prosecution  of  the  business 
for  which  it  was  erected,  would  be  invalid  as  in  violation  of  "one  of 
the  fundamental  principles  of  justice,"  but  for  a  provision  of  the  stat- 
ute which  gave  to  the  party  a  right  of  appeal  from  the  order  enforcing 
the  regulation,  and  upon  such  appeal  to  have  the  whole  matter  involved 
in  the  issue  tried  by  a  jury.     ^=     *     * 

Adjudications  which  stand  merely  as  proceedings  in  rem  cannot, 
as  a  general  rule,  be  made  the  foundation  of  ulterior  proceedings  in 
personam,  so  as  to  conclude  a  party  upon  the  facts  involved.  In  most 
cases  of  suits  which  are  in  their  nature  proceedings  in  rem,  and  so 
designated,  personal  or  public  notice  to  parties  interested  is  required 
to  be  given ;  and  they  are  entitled  to  appear  and  be  heard,  and  to 
have  such  rights  in  relation  to  the  proceedings  as  are  accorded  to  par- 
ties litigant.  Against  such  parties,  whether  they  have  actually  appeared 
or  not,  the  adjudication  is  held  to  be  conclusive  upon  the  facts  which 
are  made  the  ground  of  the  judgment,  when  those  facts  are  again 
brought  in  question  in  ulterior  or  collateral  proceedings.  But  such 
effect  is  due  to  the  fact  that  they  were  so  made  parties  to  the  pro- 
ceedings. The  Mary,  9  Cranch,  126,  144,  3  L.  Ed.  678 ;  Whitney  v. 
Walsh,  1  Cush.  29,  48  Am.  Dec.  590 ;  Scott  v.  Shearman,  2  W.  Bl.  977 ; 
Hollingsworth  v.  Barbour,  4  Pet.  466,  474,  7  L.  Ed.  922. 

When  there  appears  to  have  been  no  notice  to  the  parties  to  be  af- 
fected, and  no  opportunity  afforded  them  to  be  heard  in  defense  of 
their  rights,  whatever  operation  the  adjudication  may  have  upon  the 


Ch.  4)  NOTICE.  153 

res,  and  however  conclusive  it  may  be  held  for  the  protection  of  those 
who  act,'®  or  derive  rights  under  it,  the  adjudication  itself  can  have 
no  valid  operation  against  parties  who  may  be  named  in  the  proceed- 
ings. If  it  proceed  to  declare  any  obligation  or  impose  any  liability 
upon  such  parties,  they  may,  in  any  subsequent  suit  to  enforce  it,  deny 
the  validity  of  the  judgment,  and  controvert  the  facts  upon  which  it 
was  based.  Boswell's  Lessee  v.  Otis,  9  How.  336,  13  L.  Ed.  164 ;  Har- 
ris V.  Hardeman,  14  How.  334,  14  L.  Ed.  444 ;  jMcKee  v.  McKee,  14 
Pa.  231. 

We  think  that  these  principles  apply  to  the  proceedings  of  a  board 
of  health.  Their  determination  of  questions  of  discretion  and  judg- 
ment in  the  discharge  of  their  duties  is  undoubtedly  in  the  nature  of 
a  judicial  decision ;  and  within  the  scope  of  the  power  conferred,  and 
for  the  purposes  for  which  the  determination  is  required  to  be  made,  it 
is  conclusive.  It  is  not  to  be  impeached  or  set  aside  for  error  or  mis- 
take of  judgment,  nor  to  be  reviewed  in  the  light  of  new  or  additional 
■facts.  The  officer  or  board  to  whom  such  determination  is  confided, 
and  all  those  employed  to  carry  it  into  effect,  or  who  may  have  occa- 
sion to  act  upon  it,  are  protected  by  it,  and  may  safely  rely  upon  its 
validity  for  their  defense.  It  is  in  this  sense  that  such  adjudications 
are  often  said  to  be  conclusive  against  all  the  world ;  and  they  are  so, 
so  far  as  the  res  is  concerned.  The  statute  and  the  public  exigency  are 
sufficient  to  justify  the  omission  of  -previous  notice',  hearing  and  ap- 
peal. But  this  exigency  is  met  and  satisfied  by  the  removal  of  the  nui- 
sance. As  a  matter  of  police  regulation,  the  proceedings  and  the  auT 
thority  of  the  board  end  here.  When  the  city  comes  to  seek  its  rem- 
edy over,  to  throw  upon  some  individual,  supposed  to  have  caused  the 
nuisance,  the  expenses  of  removal  which  it  has  incurred  in  the  first 
instance  as  the  representative  of  the  public,  there  seems  to  be  no  rea- 
son, founded  either  in  the  public  exigency  or  in  the  justice  of  the  case, 
that  requires  or  warrants  the  holding  of  such  ex  parte  adjudications 
as  final  and  conclusive  to  establish  the  facts  upon  which  the  claim 
rests.     *     '^     ■■'• 

From  the  foregoing  considerations  we  are  led  to  construe  the  stat- 
utes in  question  as  conferring  no  judicial  power  upon  the  board  of 
health  beyond  that  which  is  absolutely  essential  to  the  performance  of 
their  administrative  functions  for  the  accomplishment  of  the  end  con- 
templated, to  wit,  the  summary  abatement  of  nuisances  of  the  class 

2  9  "It  is  true  that  it  is  said  in  Salem  v.  Railroad  Co.  [98  Mass.  431.  90 
Am.  Dec.  650]  that  the  board's  determination  of  questions  of  discretion  and 
judgment  in  the  discharge  of  their  duties  would  protect  all  those  employed 
to  carry  such  determinations  into  effect.  The  remark  is  obiter,  and  it  is 
doubtful  perhaps  on  reading  the  whole  case  whether  it  means  that  the  deter- 
miuatiou  would  protect  them  in  an  action  for  damages  when  the  statute 
provided  no  compensatioii  for  property  taken  which  is  not  a  nuisance.  To 
give  it  such  an  effect  as  a  judgment  merely  would  be  inconsistent  with  the 
point  decided,  and  with  Brigham  v.  Fayerweather,  140  Mass.  411,  5  N.  E. 
2(>5  (1S8G)."  Miller  v.  Horton,  152  Mass.  540,  2G  N.  E.  100,  10  L.  R.  A.  IIG, 
23  Am.  St.  Rep.  850  (1891). 


154  ADMINISTRATIVE   TOWER  AND   ACTION.  (Part    1 

indicated.  The  absence  of  any  provision  for  previous  notice  and 
hearing,  the  summary  execution  of  the  order  without  means  of  redress 
or  rehef  by  appeal  or  otherwise  against  error  and  injustice,  would 
make  the  proceedings  violate  the  fundamental  principles  of  justice  uni- 
versally recognized,  if  they  should  be  held  to  establish,  by  an  unalter- 
able and  absolutely  conclusive  decree,  the  personal  liability  of  the 
parties  who  might  be  named  by  the  board  of  health  as  having  caused 
or  permitted  the  nuisance.  We  cannot  yield  to  a  construction  which 
would  lead  to  such  results.  By  the  narrower  construction  which  we 
have  indicated,  the  statute  will  have  its  full  and  effective  operation  as 
a  police  regulation,  while  parties  who  are  charged  with  responsibility 
for  the  expenses  incurred  will  not  be  deprived  of  that  full  opportimity 
of  defense  which  is  essential  to  the  due  administration  of  justice  in 
whatever  form  of  judicial  proceeding  it  may  be  undertaken."*^ 


COMMONWEALTH  v.  SISSON  (two  cases). 

(Supreme  Judicial  Court  of  Massachusetts,  1905.     189  Mass.  247,  75  N.  E. ' 
019,  1  L.  R.  A.  [N.  S.]  752,  109  Am.  St.  Rep.  630.) 

Exceptions  from  superior  court,  Berkshire  county. 

Complaints  by  the  Commonwealth  against  Henry  D.  Sisson  and 
against  Frank  Sisson,  for  violation  of  an  order  of  the  fish  and 
game  commissioners  prohibiting  the  discharge  of  sawdust  into  the 
Konkapot  river.  The  superior  court  ordered  verdict  for  the  Common- 
wealth in  each  case,  and  defendants  bring  exceptions.     Overruled. 

LoRiNG,  J.  These  are  two  complaints,  one  against  each  defendant, 
charging  them  severally  with  permitting  sawdust  to  be  discharged  into 
the  Konkapot  river,  on  March  29,  1905,  in  violation  of  an  order  made 
by  the  fish  and  game  commissioners,  under  Rev.  Laws,  c.  91,  §  8, 
dated  August  1,  1904.  The  order,  after  reciting  the  authority  given 
by  the  act,  and  stating  that  the  mill  here  in  question  owned  by  the 
defendants  had  been  examined  by  the  board,  and  that  it  had  been  de- 
termined by  the  board  that  the  fish  in  the  brook  are  of  sufficient  value 
to  warrant  the  prohibition  of  the  discharge  of  sawdust  into  it,  and 
that  the  discharge  of  sawdust  from  the  defendants'  mill  into  said  brook 
materially  injures  the  fish  therein,  directs  the  defendants  (1)  to  erect  a 
blower  or  take  other  means  approved  by  the  commissioners  to  prevent 
the  discharge  of  sawdust  from  said  mill  into  said  brook  directly  or  in- 
directly, and  (2)  not  to  accumulate  a  pile  of  sawdust  on  the  bank  of 
the  brook,  so  that  it  may  be  liable  to  fall  into  the  stream  or  be  swept 

3  0  See  Miller  v.  Horton,  152  Mass.  .540.  2G  N.  E.  100,  10  L.  R.  A.  IIG,  2.3 
Am.  St.  Rep.  850  (1891),  post,  p.  535:  North  American  Cold  Storage  Co.  v. 
Chicago.  211  U.  S.  300,  29  Sup.  Ct.  101.  53  L.  Ed.  195  (1908).  post,  p.  256. 
See,  also.  Carter  v.  Colby.  71  N.  H.  230,  51  Atl.  904  (1902);  Loesch  v. 
Koehler,  144  Ind.  278,  41  N.  E.  326.  43  N.  E.  129,  35  L.  R.  A.  682  (1896)  ; 
King  V.  Hayes.  80  Me.  206,  13  Atl.  882   (1S8S). 


Ch.  4)  NOTICE.  155 

away  by  a  rise  of  water.  At  the  trial  it  was  proved  that  this  order 
was  served  on  the  defendants  on  or  before  July  1,  1904,  and  that  the 
defendants  continued  to  discharge  sawdust  into  Konkapot  river  up  to 
the  time  these  complaints  were  instituted.  It  also  appeared  that  there 
were  edible  fish  in  the  river  at  the  time  the  board  passed  the  order  in 
question. 

The  defendants  offered  to  show,  in  substance,  that  the  commissioners 
in  making  the  order  did  not  act  on  sworn  evidence  or  personal  knowl- 
edge as  to  the  fish  or  the  sawdust ;  that  in  the  spring  of  1905  the  de- 
fendants asked  for  a  hearing,  which  the  commissioners  denied;^  that 
the  mill  has  been  used  as  it  is  now  used  for  more  than  30  years  under 
a  claim  of  right,  and  that  the  right  was  admitted  by  the  next  mill  own- 
er below;  and,  finally,  that  a  compliance  with  the  order  as  to  a  blower 
would  impair  the  efficiency  of  the  mill  about  25  per  cent.,  that  the  saw- 
dust could  not  be  sold,  and  to  cart  it  away  would  entirely  destroy  the 
value  of  the  land  for  mill  purposes.  This  evidence  was  excluded  and 
an  exception  was  taken. 

The  defendant  then  made  the  following  six  requests  for  rulings,  to 
wit :  "First.  That  the  act  of  the  commissioners  on  fisheries  and  game, 
by  which  they  determine  that  the  fish  in  any  brook  or  stream  are  of 
sufficient  value  to  warrant  the  prohibition  or  regulation  of  the  dis- 
charge of  sawdust  from  any  particular  sawmill  materially  injuring 
such  fish,  is  a  judicial  act,  which  can  be  lawfully  performed  only  after 
the  hearing  of  evidence  bearing  upon  the  questions  involved,  viz.,  the 
value  of  the  fish  in  such  brook  or  stream  and  the  effect  of  such  sawdust 
as  injuring  such  fish.  Second.  That  the  order  in  this  case,  having  been 
passed  by  the  commissioners  without  hearing  any  evidence,  and  with- 
out any  knowledge  by  them  of  the  value  of  the  fish  in  the  stream  or 
the  amount  of  water  in  the  stream,  or  the  amount  of  sawdust  that  is  dis- 
charged by  defendants'  sawmill  into  the  stream,  is  not  a  lawful  order 
under  the  statute,  and  is  not  binding  upon  the  defendants.  Third. 
That  the  defendants  and  the  predecessors  in  title,  having  been  discharg- 
ing sawdust  from  their  sawmills  for  more  than  20  years  consecutively 
under  a  claim  of  right  into  the  Konkapot  river,  have  acquired  by  pre- 
scription a  title  to  such  right,  and  such  right  is  their  property,  of 
which  they  cannot  be  deprived  without  compensation.  Fourth.  That 
section  8  of  chapter  91  of  the  Revised  Laws  makes  no  provision  for 
compensation  to  the  owner  of  a  sawmill  who  is  forbidden  by  an  order 
of  the  commissioners  to  discharge  sawdust  into  a  brook  or  stream, 
and  said  statute  is  therefore  unconstitutional  and  void  so  far  as  these 
defendants  are  concerned.  Fifth.  That  this  order  of  the  commissioners 
so  interferes  with  the  use  of  the  property  of  the  defendants  as  to 
amount  to  a  taking  of  such  property  for  public  use,  and  the  order  is 
void,  as  no  compensation  to  defendants  for  such  taking  is  provided  by 
the  order,  or  by  the  statute  under  which  the  order  is  made.  Sixth. 
That  this  order  of  the  commissioners  so  interferes  with  the  use  of  the 
property  of  the  defendants  as  to  seriously  damage,  impair,  or  injure 


156  ADMINISTRATIVE   POWER  AND   ACTION,  (Part    1 

such  property,  and  the  order  is  void,  as  no  provision  is  made,  either  in 
the  order  or  the  statute  under  which  the  order  is  created,  for  com- 
pensating the  defendants  for  such  damage,  impairment,  or  injury  to 
their  property." 

The  defendants'  grievance  is  that  hy  an  order  of  the  board  of  fish  and 
game  commissioners  they  have  been  deprived,  without  compensation 
being  made  therefor,  of  the  right  to  conduct  the  business  of  sawing 
wood  as  they  and  their  predecessors  in  title  have  conducted  it  for  30 
years  last  past,  that  from  this  decision  there  is  no  appeal,  and  that  not 
only  was  the  order  made  without  a  hearing,  but,  when  a  hearing  was 
asked  for  by  the  defendants,  it  was  denied.  Their  contention  is,  first, 
that  under  the  act  they  had  a  right  to  be  heard  at  the  trial  in  the  su- 
perior court  on  the  questions  of  fact  determined  by  the  board ;  second, 
that  they  could  not  be  deprived  by  the  board  of  their  prescriptive  right 
to  discharge  sawdust  into  Konkapot  river  without  being  heard  and  by 
a  finding  not  made  on  sworn  evidence ;  and,  third,  that  under  any 
circumstances  this  right  cannot  be  take  without  compensation  being 
made  therefor. 

In  support  of  their  contention  they  argue  that  the  board,  in  deter- 
mining (1)  that  the  fish  in  Konkapot  river  are  of  sufficient  value  U> 
warrant  the  prohibition  or  regulation  of  the  discharge  of  sawdust 
therein,  and  (2)  that  the  discharge  of  sawdust  from  the  defendants" 
mill  materially  injured  such  fish,  was  a  judicial  action;  and,  in  connec- 
tion with  this  argument,  they  rely  on  the  distinction  pointed  out  in 
Salem  v.  Eastern  Railroad  Co.,  98  Mass.  431,  96  Am.  Dec.  G50,  be- 
tween the  action  of  a  local  board  of  health  in  making  general  regula- 
tions respecting  articles  capable  of  conveying  infection  or  creating  sick- 
ness and  the  authority  of  such  a  board  to  examine  into  the  existence  of 
any  specific  case  of  nuisance,  filth,  or  cause  of  sickness  dangerous  to 
the  public  health  and  to  make  an  order  for  the  removal  of  it.  The 
former,  being  a  rule  for  all,  is  legislative  in  character ;  the  latter,  being 
a  determination  as  to  a  particular  thing,  resulting  in  an  order  to  the 
owner  of  it  to  do  a  specified  act,  is  judicial  in  character.  For  a  later 
case,  where  it  is  pointed  out  that  similar  legislative  and  judicial  powers 
are  given  to  the  state  board  of  health  in  connection  with  the  pollution 
of  a  body  of  water  used  as  a  supply  of  a  city  or  town,  see  Nelson  v. 
State  Board  of  Health,  186  Mass.  330,  71  N.  E.  693. 

We  agree  with  the  defendants'  counsel  as  to  what  the  order  here  in 
question  is  not.  We  agree  that  it  is  not  a  general  regulation.''^ 
What  is  determined  by  it  is  that  the  discharge  of  sawdust  from  the 
defendants'  mill  materially  injures  the  fish  in  Konkapot  river,  and  it 
orders  the  defendants  to  erect  a  blower,  and  forbids  the  defendants 
making  a  pile  of  sawdust  in  connection  with  the  mill ;  and  it  resulted  in 
an  order  served  on  these  defendants  to  do  these  acts.  This  is  not  a 
general  regulation.     But  we  do  not  agree  that,  because  it  is  not  a  gen- 

31  That  general  regulations  do  not  require  notice,  see  Belcher  v.  Farrar, 
8  Allen   (Mass.)   325   (IS&i);    Taunton  v.  Taylor,  IIG  Mass.  254   (1S74). 


Ch.  4)  NOTICE.  157 

eral  regulation,  it  is  a  judicial  action.  Tlie  question  to  be  decided  here 
does  not  depend  upon  a  choice  between  the  two  classes  dealt  with  in 
Salem  v.  Eastern  Railroad,  98  Mass.  431,  96  Am.  Dec.  650,  and  in 
Nelson  v.  State  Board  of  Health,  186  Mass.  330,  71  N.  E.  693,  and  for 
these  reasons : 

We  are  of  opinion,  in  the  first  place,  that  it  is  within  the  power  of  the 
Legislature  to  protect  and  preserve  edible  fish  in  the  rivers  and  brooks 
of  the  commonwealth,  and  for  that  purpose,  if  they  think  proper,  to 
forbid  any  sawdust  being  discharged  into  any  brook  containing  such 
fish.  The  right  to  run  a  sawmill  on  the  bank  of  a  brook  or  a  river  is, 
like  all  rights  of  property,  subject  to  be  regulated  by  the  Legislature, 
when  the  unrestrained  exercise  of  it  conflicts  with  other  rights,  public 
or  private.  See  Commonwealth  v.  Alger,  7  Cush.  53,  54 ;  Rideout  v. 
Knox,  148  Mass.  368,  19  N.  E.  390,  2  L-  R.  A.  81,  12  Am.  St.  Rep. 
560.  The  defendants'  contention  that  they  have  a  prescriptive  right 
to  discharge  sawdust  into  the  river,  even  if  it  kills  or  injures  the 
fish  therein,  which  prescriptive  right  cannot  be  taken  away  or  impaired 
without  compensation  being  made  therefor,  means  this,  and  nothing 
more:  Where  the  Legislature,  up  to  the  passage  of  the  act  here  in 
question  (St.  1890,  p.  106,  c.  129),  had  not  regulated  the  business  of 
sawing  wood  on  the  banks  of  streams  having  in  them  edible  fish,  and 
where,  in  the  absence  of  such  regulation,  the  defendants  had  discharged 
sawdust  into  the  stream  for  30  years,  the  people  have  lost  the  power 
to  regulate  the  conflicting  rights  of  sawmills  on  the  bank  of  the  stream 
and  to  preserve  fish  in  the  stream  itself.  The  statement  of  the  proposi- 
tion is  enough  to  show  that  there  is  nothing  in  it.  The  decision  in 
Attorney  General  v.  Revere  Copper  Co.,  152  Mass.  444,  25  N.  E.  605,  9 
L.  R.  A.  510,  relied  on  by  the  defendants,  is  confined  to  the  gaining  of 
prescriptive  rights  with  respect  to  property  owned  by  the  public  un- 
der a  statute  of  limitations,  which  puts  the  property  rights  of  the  public 
on  the  same  basis  as  those  of  individuals. 

We  are  of  opinion,  in  the  second  place,  that  in  case  the  Legislature 
thought  that  in  regulating  the  conflicting  rights  of  individuals  to  run 
sawmills  on  the  banks  of  a  river  on  the  one  hand,  and  of  the  public,  on 
the  other  hand,  to  have  fish  live  and  increase  in  the  same  stream,  it  was 
not  worth  while  to  forbid  sawdust  being  discharged  into  every  stream 
in  which  there  were  edible  fish,  they  could  leave  to  a  board  having 
peculiar  knowledge  on  the  subject  the  selection  of  the  brooks  and  riv- 
ers in  which  the  fish  were  of  sufficient  value  to  warrant  the  prohibition 
or  regulation  of  the  discharge  of  sawdust.  The  right  of  the  Legis- 
lature to  delegate  some  legislative  functions  to  state  boards  was  con- 
sidered by  this  court  in  Brodbine  v.  Revere,  182  Mass.  598,  Q6  N.  E. 
607.  And,  further,  in  case  the  Legislature  thought  that  an  act  which 
forbade  any  sawdust  to  be  discharg-ed  into  any  of  the  streams  selected 
by  the  board  was  an  unnecessarily  stringent  one,  they  could,  in  our 
opinion,  leave  it  to  the  board  to  settle  in  each  particular  case  the  prac- 
tical details  required  to  harmonize  best  these  two  conflicting  rights. 


158  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

The  power  thus  delegated  to  the  board  of  fitting  the  details  of  regula- 
tion to  the  particular  circumstances  of  each  case  is  of  the  same  char- 
acter as  that  long  exercised  by  the  fish  and  game  commissioners  and 
their  predecessors,  the  board  of  inland  fisheries,  in  prescribing  the  de- 
tails of  the  construction  of  the  fishways  to  be  constructed  in  dams 
where  by  law  fishways  have  to  be  maintained.  See  St.  18G6,  pp.  231, 
232,  c.  238,  §§  2,  6;  St.  1867,  p.  741,  c.  344;  Pub.  St.  1882,  c.  91,  § 
4.  See,  also,  3  Province  Laws,  1745-46  (State  Ed.)  c.  20,  p.  267. 
These  acts  provide  that  the  board,  after  examination  of  dams  upon 
rivers  where  the  law  requires  fishways,  is  to  determine  whether  the 
fishways  in  existence  are  sufficient,  and  to  prescribe  by  an  order  in 
writing  what  changes  or  repairs,  if  any,  shall  be  made,  and  at  what 
times  the  fishways  are  to  be  kept  open,  and  to  give  notice  thereof  to  the 
owners  of  such  dams.  The  action  of  the  fish  commissioners  under 
these  acts  is  uncjuestionably  legislative  in  character,  and  we  cannot 
doubt  that  their  action  under  them,  exercised  and  acquiesced  in  by  the 
public  for  this  length  of  time,  is  valid. 

The  result  is  that  in  our  opinion  the  action  of  the  board  in  the  case 
at  bar  was  the  working  out  of  details  under  a  legislative  act.  The 
board  is  no  more  required  to  act  on  sworn  evidence  than  is  the  Legis- 
lature itself,  and  no  more  than  in  case  of  the  Legislature  itself  is  it 
bound  to  act  only  after  a  hearing,  or  to  give  a  hearing  to  the  plaintiff 
when  he  asks  for  one;  and  its  action  is  final,  as  is  the  action  of  the 
Legislature  in  enacting  a  statute,  and,  being  legislative,  it  is  plain  that 
the  questions  of  fact  passed  upon  by  the  Legislature  in  adopting  the 
provisions  enacted  by  them  cannot  be  tried  over  by  the  court.  This 
court  has  been  recently  asked  to  try  over  the  expediency  of  compul- 
sory vaccination  in  an  action  under  a  statute  requiring  it.  Com.  v. 
Jacobson,  183  Mass.  242,  66  N.  E.  719,  67  L.  R.  A.  935.  On  its  de- 
clining to  do  so  an  appeal  was  taken  to  the  Supreme  Court  of  the 
United  States,  and  its  refusal  to  do  so  was  held  to  be  correct.  Jacob- 
son  V.  Mass.,  197  U.  S.  11,  25  Sup.  Ct.  358,  49  L.  Ed.  643.  See  par- 
ticularly page  30  of  197.  U.  S.,  page  363  of  25  Sup.  Ct.  (49  L.  Ed. 
643).  See,  also,  Devens,  J.,  in  Train  v.  Boston  Disinfecting  Co.,  144 
Mass.  531,  11  N.  E.  929,  59  Am.  Rep.  113. 

The  practical  result  is  that  the  defendants  are  forbidden  to  con- 
duct their  sawmill  as  they  had  conducted  it  for  30  years  by  a  board 
who  have  not  heard  evidence  and  have  refused  the  defendants  a  hear- 
ing, that  the  action  of  the  board  is  final,  and  that  no  compensation  is 
due  to  them.  This  result  may  seem  strange.  But  it  is  no  less  strange 
than  the  practical  results  in  cases  which  are  decided  law.  Take  the 
case  before  the  court  in  Nelson  v.  State  Board  of  Health,  186  Mass. 
330,  71  N.  E.  693,  namely,  a  farm  on  the  banks  of  a  pond  used  as  the 
water  supply  of  a  town.  The  state  board  of  health  can  pass  a  general 
regulation  under  section  113,  c.  75,  Rev.  Laws,  forbidding  privies 
within  a  specified  distance  from  its  shore ;  and,  if  the  defendant  had 
a  privy  there  for  30  years,  his  right  to  maintain  it  would  cease,  al- 


Ch.  4)  NOTICE.  159 

though  the  order  was  made  without  hearing;  and  the  action  of  the 
board  is  final.  On  the  other  hand,  if  the  board  had  proceeded,  under 
section  118,  to  investigate  this  particular  privy,  the  defendant  would 
have  been  entitled  to  a  hearing,  and,  on  appeal,  to  a  jury,  as  provided 
by  section  119. 

Again,  take,  for  example,  the  regulation  of  a  local  board  of  health  in 
question  in  Train  v.  Boston  Disinfecting  Co.,  144  Mass.  523,  11  N.  E. 
929,  59  Am.  Rep.  113,  requiring  all  rags  arriving  at  the  port  of  Boston 
from  any  foreign  port  to  be  disinfected  at  the  expense  of  the  owner 
before  being  discharged.  The  power  of  the  local  board  of  health  to 
declare  these  rags  a  nuisance  per  se,  so  as  to  impose  upon  the  owner 
without  trial  the  expense  of  disinfecting  them,  was  established  by  this 
court  in  that  case.  Had  the  local  board  undertaken  to  investigate 
the  particular  rags  in  question  in  Train  v.  Boston  Disinfecting  Co.,  un- 
der their  jurisdiction  to  inquire  into  sources  of  filth,  and  they  had  been 
authorized  under  that  act  to  abate  the  nuisance  if  they  found  the  rags 
to  be  a  nuisance,  by  ordering  them  to  be  disinfected  at  the  expense  of 
the  defendant,  they  would  have  had  to  give  the  defendant  a  hearing 
on  notice,  and  from  their  decision  the  defendant  would  have  had  a 
right  to  a  trial  by  jury. 

That  is  what  was  decided  in  Salem  v.  Eastern  Railroad,  98  Mass. 
431,  96  Am.  Dec.  650.  That  is  to  say,  on  the  one  hand,  where  the  law 
is  general  and  the  question  is  whether  under  it  the  defendants  are 
committing  a  nuisance,  the  facts  are  determined  by  judicial  action;  on 
the  other  hand,  the  determination  of  the  same  facts  is  legislative  in 
case  the  Legislature  decides  to  make  the  thing  a  nuisance  per  se.  And 
where  it  is  legislative  it  is  final,  and  no  hearing  is  necessary;  and 
where,  as  is  the  case  here,  it  is  made  in  the  exercise  of  the  police  pow- 
er, no  compensation  is  due. 

The  delegation  of  such  legislative  powers  to  a  board  is  going  a 
great  way.  But  the  remedy  is  by  application  to  the  Legislature,  if  a 
remedy  should  be  given.  In  our  opinion  it  is  within  its  constitutional 
power,  and  the  court  can  give  no  remedy.  For  similar  cases,  where 
the  use  which  can  be  made  of  property  has  been  left  to  the  final  de- 
termination of  boards,  see  Newton  v.  Joyce,  166  Mass.  83,  41  N.  E. 
116,  55  Am.  St.  Rep.  385;  Com.  v.  Roberts,  155  Mass.  281,  29  N.  E. 
522,  16  L.  R.  A.  400.  See,  also,  in  this  connection.  In  re  Wares,  Pe- 
titioners, 161  Mass.  70,  36  N.  E.  586.  The  difiference  between  the 
majority  and  the  minority  of  the  court  in  Miller  v.  Horton,  152  Mass. 
540,  26  N.  E.  100,  10  L.  R.  A.  116,  23  Am.  St.  Rep.  850,  was  on  the 
construction  of  the  act  there  in  question. 

Exceptions  overruled.^- 

3  2  "It  is  urged  that  there  was  denial  of  due  process  of  law  in  failing  to  ac- 
cord plaintiff  in  error  a  hearing  before  the  board  of  tea  inspectors  and  the 
Secretary  of  the  Treasury  in  establishing  the  standard  in  question,  and  be- 
fore the  General  Appraisers  upon  the  re-examination  of  the  tea.  Waiving 
the  point  that  the  plaintiff  in  error  does  not  appear  to  have  aslied  for  a  hear- 


IGO  ADMIXISTKATIVE   TOAYER   AND   ACTION.  (Part    1 

SECTION  21.— IN  REVOKING  LICENSES 


CO.AIMONWEALTH  v.  KINSLEY. 
(Supreme  Judicial  Court  of  Massachusetts,  1882.    133  Mass.  578.) 

FiFXD,  J.  ~  The  defendant  was  complained  of  for  unlawfully  keep- 
ing, in  a  building  occupied  by  him  in  Millbury,  a  table  for  the  pur- 
pose of  playing  at  pool  for  hire,  gain  and  reward,  without  authority 
or  license  therefor. 

By  Gen.  St.  c.  88,  §§  69-72,  as  amended  by  St.  1880,  c.  9-4,  the  se- 
lectmen in  towns  are  authorized  to  grant  licenses  for  such  a  table, 
but  "such  license  may  be  revoked  at  the  pleasure  of  the  authority 
granting  it" ;  and  all  persons  are  prohibited,  under  a  penalty,  from 
keeping  such  a  table  without  a  license. 

A  license  had  been  duly  granted  to  the  defendant,  and  it  had  been 
revoked  by  the  selectmen  without  giving  him  notice  of  their  inten- 
tion to  revoke  it;  but  they  had  given  the  town  clerk  a  certificate  of 
the  vote  revoking  the  license,  and  he  had  informed  the  defendant  of  its 
contents,  and  thereafterwards  the  defendant  "allowed  a  pool  table  to 
be  used  for  hire  upon  his  premises."  The  defendant  contends  that 
this  revocation  was  inoperative,  because  it  was  made  without  giving 
him  an  opportunity  to  be  heard,  and  that,  if  the  statutes  purport  to  au- 
thorize a  revocation  without  notice,  they  are  in  this  respect  unconsti- 
tutional and  void. 

The  keeping  of  a  pool  table  for  hire  is  one  of  many  things  affecting 
the  public  morals,  which  the  Legislature  can  either  absolutely  prohibit 
or  can  regulate,  and  one  common  form  of  regulation  is  by  requiring  a 
license.  A  licensee  takes  his  license  subject  to  such  conditions  as  the 
Legislature  sees  fit  to  impose,  and  one  of  the  statutory  conditions  of 
this  license  was  that  it  might  be  revoked  by  the  selectmen  at  their 
pleasure.  Such  a  license  is  not  a  contract,  and  a  revocation  of  it  does 
not  deprive  the  defendant  of  any  property,  immunity  or  privilege  with- 
in the  meaning  of  these  words  in  Declaration  of  Rights,  art.  12.  Com- 
monwealth V.  Blackington,  2-4  Pick.  352 ;  Calder  v.  Kurby,  5  Gray,  597  ; 
Commonwealth  v.  Colton,  8  Gray,  488 ;  Commonwealth  v.  Brennan,  103 
jMass.  70;  Commonwealth  v.  Adams,  109  Mass.  341;  Commonwealth  v. 
Fredericks,  119  Mass.  199. 

ing,  and  assuming  tliat  tlie  statute  did  not  confer  sucli  a  riglit,  we  are  of 
opinion  tliat  the  statute  was  not  objectionable  for  that  reason.  The  provi- 
sions in  respect  to  the  fixing  of  standards  and  the  examination  of  samples  liy 
government  experts  was  for  the  purpose  of  determining  whether  the  condi- 
tions existed  which  conferred  the  right  to  import,  and  they  therefore  in  no 
just  sense  concerned  a  taking  of  property.  This  latter  question  was  intended 
by  Congress  to  be  finally  settled,  not  by  a  judicial  proceeding,  but  by  the  ac- 
tion of  the  agents  of  the  government,  upon  whom  power  on  the  subject  was 
conferred."  Butttteld  v.  Stranahan,  192  U.  S.  470,  497,  24  Sup.  Ct.  M9,  355 
(48  L.  Ed.  52o)   (1904). 


Ch.  4)  NOTICE.  161 

It  is  immaterial  in  what  manner  the  defendant  obtained  knowledge 
that  his  license  had  been  revoked.  Without  considering  whether  the 
defendant  would  be  liable  to  the  forfeiture  imposed  by  Gen.  St.  c.  88,  § 
70,  if  he  had  not  had  either  notice  or  knowledge  that  his  license  had 
been  revoked,  after  such  knowledge  he  would  clearly  be  liable.  St. 
1876,  c.  147,^^  has  no  apphcation  to  this  case. 

Exceptions  overruled. 


^lARTlX  V.  STATE. 
(Supreme  Court  of  Nebraska,  1888.     23  Neb.  371,  3G  N.  W.  554.) 

Error  to  district  court,  Lancaster  county. 

George  Martin  was  indicted  for  selling  liquors  without  a  license. 
Case  tried  upon  a  stipulation  of  facts.  Judgment  for  the  State,  and 
defendant  brings  error. 

Reese,  C.  J.  Plaintiff  in  error  was  convicted  of  the  crime  of  selling 
intoxicating  liquors  in  violation  of  law,  not  having  a  license  there- 
for.    *     =^=     * 

It  appears  by  the  record  that  a  license  was  issued  to  plaintiff  in 
error  on  the  13th  day  of  April,  1887,  by  which  he  was  permitted  to 
sell  intoxicating  liquors  until  the  second  Tuesday  in  April,  1888,  but 
that  on  the  22d  day  of  June,  1887,  he  was  convicted  of  selling  liquor  on 
Sunday,  the  12th  day  of  the  same  month.  This  conviction  was  had  in 
the  police  court,  and  on  the  27th  day  of  June  the  police  judge  certified 
the  conviction  to  the  city  council.  At  a  subsequent  meeting  of  the 
council,  we  presume,  although  the  date  is  not  given,  the  resolution  re- 
voking the  license  was  adopted  without  any  notice  having  been  given 
to  plaintiff  in  error  of  the  contemplated  action  of  the  council.  The 
section  of  the  statute  under  which  this  action  was  had  is  section  92  of 
the  law  governing  cities  of  the  first  class  (Comp.  St.  1887,  c.  13a), 
which  is  as  follows  : 

"Sec.  92.  The  mayor  and  council  may,  by  ordinance,  license,  re- 
strain, regulate,  or  prohibit  the  selling  or  giving  away  of  malt,  spiritu- 
ous, or  vinous,  mixed  or  fermented,  intoxicating  liquors,  the  license 
not  to  extend  beyond  the  municipal  year  for  which  it  shall  be  granted, 
and  to  determine  the  amount  to  be  paid  for  such  license  not  less  than 
the  minimum  sum  required  by  any  general  law  upon  the  subject; 
*  *  *  provided,  that  any  permits  issued  to  a  druggist  may  be  re- 
voked by  the  council  at  pleasure ;   and  further,  that  any  license  issued 

3  3  This  statute  provides  tliat  licenses  granted  to  Iveepers  of  billiard  saloons 
under  Gen.  St.  c.  88,  shall  be  signed  by  the  clerk  of  the  city  or  town  in  which 
they  are  granted,  shall  be  recorded  by  him,  and  shall  continue  in  force  until 
the  1st  day  of  May  next  ensuing,  unless  sooner  revoked,  and  that,  when  re- 
voked, the  clerk  of  the  city  or  town  shall  give  written  notice  of  such  revoca- 
tion to  the  holder  of  the  license. 

Accord:    Child  v,  Bemus,  17  R.  I.  230,  21  Atl.  539,  12  L.  R.  A.  57  (1891). 
Fr  .  Adm  .  Law  . — 11 


162  ADMINISTRATIVE   TOWER   AND   ACTION.  (Part    1 

by  the  mayor  and  council  for  any  purpose  mentioned  in  this  section 
shall  be  revoked  by  the  mayor  and  council  upon  the  conviction  of  the 
licensee  of  any  violation  of  any  law,  ordinance,  or  regulation  pertaining 
to  the  sale  of  such  liquors,  and  proceedings  of  appeal  or  error  taken  to 
review  such  judgment  or  conviction  shall  in  no  wise  affect  the  revoca- 
tion of  such  license,  or  the  effect  of  such  conviction,  until  such  ap- 
pellate or  error  proceedings  be  finally  determined,  and  such  convic- 
tion be  finally  annulled,  revoked,  or  reversed." 

It  is  made  the  duty  of  the  mayor  and  council  to  revoke  the  license 
"upon  conviction  of  the  licensee  of  any  violation  of  any  law,  ordinance, 
or  regulation  pertaining  to  the  sale  of"  liquors.  The  language  of  the 
statute  is  imperative.  Any  license  "shall  be  revoked"  upon  such  con- 
viction. But  it  is  contended  that  before  the  mayor  and  council  can 
legally  revoke  the  license,  notice  must  be  given  to  the  licensee  in  order 
that  he  may  show  cause,  if  any  exists,  why  the  license  should  not  be 
revoked.  In  support  of  this  contention  it  is  insisted  that  the  license  is 
a  franchise,  or  public  right,  vested  in  the  individual,  and  for  which  he 
has  paid  a  consideration,  and  therefore  it  has  all  the  necessary  ele- 
ments of  property  under  the  provision  of  the  Constitution  that  "no 
person  shall  be  deprived  of  life,  liberty,  or  property  without  due  process 
df  law."  There  is  no  vested  right  in  a  license  to  sell  intoxicating  liq- 
uors, which  the  state  may  not  take  away  at  pleasure.  Pleuler  v.  State, 
11  Neb.  547,  10  N.  W.  481.  Such  licenses  are  not  contracts  between 
the  state  or  municipality  issuing  them  and  the  licensee,  but  are  mere 
temporary  permits  to  do  what  otherwise  would  be  unlawful.  Barrie 
v.  Schultz,  34  N.  Y.  657.  They  are  subject  to  the  direction  of  the 
government,  which  may  revoke  them  as  it  deems  fit,  and  may  be  abro- 
gated by  the  adoption  of  a  municipal  ordinance  prohibiting  the  sale  of 
liquors.     Columbus  City  v.  Cutcomp,  61  Iowa,  672,  17  N.  W.  47. 

The  law  of  1881,  commonly  known  as  the  "Slocumb  Law,"  absolutely 
prohibits  the  entire  traffic  in  intoxicating  liquors  "by  the  most  expres- 
sive language,"  giving  only  an  exception  where  the  license  or  permit  is 
issued.  Pleuler  v.  State,  11  Neb.  547, 10  N.  W.  481.  We  therefore  con- 
clude that  there  is  no  such  vested  right  or  essential  element  of  property 
in  a  license  as  to  bring  it  within  the  provision  of  the  Constitution  above 
quoted. 

But  this  does  not  entirely  dispose  of  the  question  here  presented; 
for,  if  notice  to  the  licensee  was  necessary  to  give  the  municipal  au- 
thorities jurisdiction,  the  acts  of  the  council  might  still  be  void  for 
want  of  authority  or  power  to  act.  A  number  of  cases  are  cited  by 
plaintiff  in  error,  holding  that  notice  in  the  particular  cases  then  under 
consideration  was  necessary.  These  cases  are :  Plummer  v.  Com.,  1 
Bush  (Ky.)  26;  State  ex  rel.  Heise  v.  Town  Council,  6  Rich.  Law  (S. 
C.)  404;  Com.  v.  Moylan,  119  Mass.  109;  and  Gaertner  v.  City  of 
Fond  du  Lac,  34  Wis.  504. 

In  Plummer  v.  Com.  one  Shepherd  was  licensed  by  the  county  court 
to  keep  a  tavern.     Before  the  expiration  of  the  license,  the  county 


Ch.  4)  NOTICE.  163 

court,  without  any  notice,  suspended  the  same  until  the  next  term  of 
court.     During  this  period  Plummer  assisted  Shepherd  in  retaiHng  Hq- 
uors,  and  was  indicted  therefor.     He  justified  under  Shepherd's  license. 
To  avoid  this,  the  prosecutor  offered  in  evidence  the  order  of  suspen- 
sion, which  was  admitted  over  the  objection  of  the  accused.     For  this 
the  Court  of  Appeals  reversed  the  judgment  of  conviction.     The  ac- 
tion of  the  county  court  was  had  under  section  9,  c.  99,  2  Stanton's  Rev. 
St.  Ky.,  which  provided,  in  substance,  that  it  should  be  the  duty  of 
every  trustee  of  a  town,  when  informed  that  an  offense  was  commit- 
ted by  a  tavern  keeper  of  his  town,  "to  make  the  same  known  to  the 
judge  of  the  county  court,  who  shall  cause  the  alleged  offender  to  be 
I  summoned  to  appear  before  him  at  a  time  and  place  designated,  to 
I  show  cause  why  his  license  shall  not  be  suspended  until  the  next  county 
court,  when  the  judge  should  "hear  and  decide  the  case,"  and  make 
1  such  order  as  might  be  necessary.     As  the  county  judge  had  omitted 
j  to  cause  Shepherd  "to  be  summoned  to  appear  before  him,"  as  plainly 
I  required  by  statute,  it  was  very  properly  held  that  the  trial  court  erred 
I  in  admitting  the  order  of  suspension  in  evidence. 
I      The  case  of  State  ex  rel.  Heise  v.  Town  Council  was  where  the 
I  town  council  of  Columbia  had  enacted  an  ordinance  that  upon  a  retailer 
I  of  spirituous  liquors  selling  liquor  to  a  slave,  his  license  should  be 
[  forfeited ;    and  it  was  held  that  under  the  charter  no  other  penalties 
[  than  fines  should  be  inflicted,  and  therefore  the  ordinance  was  void, 
1  as  well  as  the  order  of  forfeiture  under  it. 

I     The  case  of  Com.  v.  Moylan  was  where  the  defendant  was  accused 

I  of  selling  liquors  in  violation  of  law.     Proof  of  the  sale  was  made. 

i  She  relied  on  her  license  previously  issued.     The  government  then 

i  introduced  the  record  of  the  mayor  and  aldermen,  showing  a  revocation 

!of  the  license,  which  was  admitted  over  the  objections  of  the  defend- 

j  ant.     The  record  showed  that  the  committee,  before  whom  the  hearing 

I  was  had,  reported  to  the  council  that  in  their  opinion  it  was  inexpe- 

•dient  to  take  further  action  in  the  matter.     The  report  was  accepted. 

lit  was  then  ordered  that  the  license  be  revoked.     It  was  held  by  the 

i  Supreme  Court  that  it  was  not  within  the  power  of  the  council  to  ar- 

•bitrarily  revoke  the  license,  there  being  no  proof  of  any  violation  of  its 

'conditions.     The  statute  of  that  state  provided  that  "the  mayor  and 

aldermen,  or  the  selectmen  of  the  city  or  town  by  which  a  license  has 

been  issued,  after  notice  to  the  licensee  and  reasonable  opportunity  to 

jbe  heard  by  them,  or  by  a  committee  of  their  number,  may  declare 

jthe  license  forfeited,  upon  proof  satisfactory  to  them  that  he  has  vio- 

jlated,  or  permitted  to  be  violated,  any  of  the  conditions  thereof."    Yet, 

'in  the  later  case,  Com.  v.  Hamer,  128  Mass.  76,  decided  by  the  same 

|"ourt,  it  was  held  that  a  written  notice  to  the  licensee  was  not  re- 

iiuired,  and  that  "if  any  notice  is  necessary,"  a  verbal  notice  would  be 

'5ufficient.^* 

;    8*  The  question  in  this  case  was  whether  notice  of  the  revocation  was  re- 
luired  to  be  given,  after  the  license  had  been  revoiied. 


164  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

111  Gaertner  v.  City  of  Fond  du  Lac,  the  Supreme  Court  of  Wiscon- 
sin, by  a  dictum,  says :  "It  would  seem  that  the  council  of  the  city  has 
no  authority  to  revoke  a  license  upon  judgments  without  giving  the 
licensee  notice  and  opportunity  to  be  heard,  but  the  point  is  not  here  de- 
cided." If  that  case  is  authority  for  anything,  it  would  simply  be  that 
when  charges  are  preferred  against  a  licensee  for  violation  of  the  law, 
it  would  probably  be  necessary  that  notice  of  the  pendency  of  such 
charges  should  be  given  before  the  question  could  be  examined  and 
license  revoked. 

In  this  case,  the  statute  makes  no  reference  to  the  hearing  of  a  com- 
plaint by  the  mayor  and  council,  but  simply  provides  that  "the  license 
shall  be  revoked  by  the  mayor  and  council,  upon  conviction  of  the  li- 
censee of  any  violation  of  any  law,  ordinance,  or  regulation  pertaining  i 
to  the  sale  of  such  liquors,"  etc.  No  trial  or  investigation  could  be 
had.  The  certificate  of  the  police  judge,  showing  a  conviction  oif  plain- 
tiff in  error,  was  before  the  council.  They  had  but  a  simple  min- 
isterial duty  to  perform,  in  obedience  to  the  plain  mandate  of  the  law, 
and  that  was  to  revoke  the  license.  It  is  stipulated  that  he  was  con- 
victed of  the  ofifense  stated  in  the  certificate  of  the  police  judge.  It 
is  admitted  that  the  certificate  was  true.  That  being  the  case,  no  de- 
fense could  have  been  made,  and  no  notice  was  necessary  to  give  the 
council  jurisdiction. •■^'^     *     '-^     * 

The  judgment  of  the  district  court  is  therefore  affirmed.^' 


REX  V.  VENABLES. 

(Court  of  King's  Bench,  1725.     2  Ld.  Raym.  1405.) 

An  order  was  made  by  two  justices  of  the  peace  for  the  county  o 
Hertford,  15th  November,  1723,  reciting,  that  whereas  it  appeare( 
upon  oath,  that  the  defendant  kept  a  common  alehouse  in  the  borougl 
of  Hertford,  and  that  he  kept  it  as  a  disorderly  house;  whereupon  th 
said  justices,  for  the  reason  aforesaid,  and  by  reason  a  greater  numbe 
of  alehouses  was  kept  in  the  said  borough  than  were  necessary,  by  th 
said  order  discharged  and  put  away  the  selling  ale  from  the  said  hous( 
and  did  suppress  the  said  Robert  Venables  from  keeping  a  commo 
alehouse,  &c.  Afterwards  the  justices  the  3d  of  June,  1724,  mad 
another  order,  reciting  the  former  orders,  and  a  warrant  under  the; 
hands  and  seals  commanding  the  constable  to  give  notice  of  that  o) 
der,  and  that  oath  had  been  made  before  them,  that  the  defendant  w^ 
served  with  that  order,  and  reciting,  that  it  appeared  to  them  by  tl 
oath  of  two  persons  named  in  that  order,  that  since  the  defendai 
had  notice  of  that  order,  he  had  continually  to  the  date  thereof  usf 

3  5  The  opinion  on  the  other  two  points  is  omitted. 

Accord:     People  v.  Meyers,  95  N.  Y.  223  (1884);    Sprayberry  v.  Atlanta,  : 
Ga.  120,  13  S.  E.  197  (1891) ;   Genova's  License,  3  Pa.  Dist.  722  (1889). 
8  6  The  dissenting  opinion  of  Maxwell,  J.,  is  omitted. 


Ch.4) 


165 


the  said  house  as  an  alehouse,  and  used  commonly  the  selling  of  ale 
I  and  beer  therein,  contrary  to  the  former  orders;  the  said  justices 
therefore,  by  virtue  of  the  statute,  &c.  ordered  that  the  defendant 
should  be  committed  to  gaol  'for  three  days,  and  until  he  should  enter 
into  a  recognizance,  not  to  sell  ale,  &c. 

The  defendant  having  removed  these  orders  by  certiorari  into  this 
court,  Mr.  Reeve  took  exception  to  both  the  orders,  that  it  did  not  ap- 
I      pear  by  either  of  them,  that  the  defendant  was  summoned,  and  had 
I      an  opportunity  of  making  his  defence ;   whereas  if  he  had  been  heard, 
'      possibly  he  might  have  satisfied  the  justices,  that  the  complaint  was 
'      groundless.     That  in  all  summary  convictions,  of  which  nature  these 
'      orders  were,  a  summons  was  necessary  to  be  shewn.     So  is  1  Salk. 
'      181,  Reg.  v.  Dier,  where  it  is  held  by  the  court,  that  upon  the  com- 
i      plaint,  the  justices  ought  to  make  a  memorandum  and  issue  a  sum- 
mons, and  if  the  party  will  not  appear,  or  cannot  be  found,  they  may 
proceed;    but  there  the  conviction  was  quashed,  because  in  the  sum- 
mons  set  out,  the  time  of  the  appearance  therein  directed  was  impos- 
sible.^"    *     *     * 
I         The  Court  were  unanimously  of  opinion,  that  the  party  in  these 
i      cases  ought  to  be  heard,  and  for  that  purpose  ought  to  be  summoned 
on  fact;    and  if  the  justices  proceeded  against  a  person  without  sum- 
moning him,  it  would  be  a  misdemeanor  in  them,  for  which  an  in- 
formation would  lie  against  them.     But  since  in  these  sorts  of  orders, 
'      for   suppressing   alehouses,   keeping   bastards,    &c.,   summonses   have 
,      not  been  set  out,  they  would  intend  the  justices  having  jurisdiction 
had  proceeded  regularly,  and  that  there  was  a  summons ;    it  not  ap- 
I      pearing  by  the  order,  that  there  was  none,  or  that  there  had  been  an 
1      ill  summons ;   for  where  it  appears  there  was  an  ill  summons,  that  will 
'      be  fatal,  and  leave  no  room  to  make  it  good  by  intendment :    which 
,      answers  the  case,  1  Salk.  181. 

I  And  FoRTESCUE,  Justice,  said,  the  case  of  the  Queen  v.  King  was 
\  the  very  case  in  point.  And  the  orders  were  confirmed,  June  10,  1735. 
;  But  afterwards  it  being  made  to  appear  to  the  court  by  affidavits,  that 
I  the  justices  had  proceeded  in  making  the  last  order,  without  summon- 
I  ing  Venables;  after  having  heard  counsel  for  the  justices,  the  court 
gave  leave  to  file  an  information  against  them. 


PEOPLE,  for  Use  of  STATE  BOARD  OF  HEALTH  v.  McCOY. 

(Supreme  Court  of  Illinois,  1SS8.     125  111.  289,  17  X.  E.  78G.) 

Scott,  J.^^  This  suit  was  brought  in  the  criminal  court  of  Cook 
county,  under  and  by  virtue  of  the  provisions  of  section  12  of  the  act 
of  1887  (Laws  1887,  p.  228),  to  regulate  the  practice  of  medicine  in 

37  A  portion  of  this  case  is  omitted. 

«8  Only  a  part  of  the  opinion  of  Scott,  J.,  is  printed. 


166  ADMINISTRATIVK   TOWEU   AND   ACTION.  (Part    1 

this  state,  in  the  name  of  the  people,  for  the  use  of  the  State  Board  of 
Health,  against  John  C.  McCoy,  ahas  J.  Cresap  McCoy,  to  recover 
the  statutory  penalty  imposed  by  that  section  for  practicing  medicine 
without  a  certificate  from  the  State  Board  of  Health.  On  the  trial, 
the  court  found  the  issues  for  defendant  and  rendered  judgment 
against  plaintiff  for  costs.     *     *     * 

It  is  said  the  state  board,  in  regard  to  revoking  certificates  issued  to 
physicians,  must  investigate,  hear  and  determine  certain  questions,  and 
to  the  extent  it  exercises  such  powers  its  functions  are  judicial.  It 
is  therefore  claimed  that  the  question  whether  a  physician  has  been 
guilty  of  "unprofessional  or  dishonorable  conduct"  is  a  question  of  fact, 
the  finding  as  to  which,  when  submitted  to  the  board,  is  final  and  con- 
clusive, and  is  not  open  to  review  by  other  tribunals.  The  doctrine  con- 
tended for  finds  support  in  the  decision  of  this  court  in  People  v. 
Dental  Examiners,  110  111.  180.  Treating  the  record  of  the  board, 
in  the  matter  of  revoking  the  certificate  that  had  been  issued  to  de- 
fendant, as  having  the  force  of  a  proceeding  in  its  nature  judicial  on  the 
part  of  the  board  in  a  case  where  it  had  jurisdiction  of  the  subject-mat- 
ter to  be  investigated,  yet  the  present  record  is  fatally  defective,  for 
the  reason  it  is  made  to  appear  defendant  had  no  notice  of  the  proceed- 
ings proposed  to  be  taken  against  him.  The  prosecution  put  defendant 
on  the  stand,  and  made  him  their  own  witness,  and  he  distinctly  stated, 
at  their  instance,  that  the  notice  found  in  the  record  was  never  in  fact 
served  upon  him.  The  affidavit  of  service  is  not  sufficient  to  overcome 
his  testimony  in  that  respect.  It  is  contrary  to  the  analogies  of  the  law 
that  a  proceeding,  in  its  nature  judicial,  should  be  obligatory  and 
conclusive  upon  a  person  not  a  party  thereto ;  otherwise  a  party  might 
be  deprived  of  important  rights,  with  no  opportunity  to  defend  against 
wrongful  accusations.  Whether  the  right  to  practice  medicine  or  law 
is  property,  in  the  technical  sense,  it  is  a  valuable  franchise,  and  one 
of  which  a  person  ought  not  to  be  deprived,  without  being  offered  an 
opportunity,  by  timely  notice,  to  defend  it.     *     *     * 

The  judgment  will  be  affirmed.^ ^ 

sn  Act  lcSS7,  §  9,  did  not  expressly  provide  for  notice  to  the  person  proceeded 
a.saiust  before  revoking  the  certificate  to  practice  medicine.  The  present  act 
(Laws  1809,  p.  2T5,  §  6)   does. 

See  Century  Digest,  Process,  §§'  201-203.  See,  also.  Oshkosh  v.  State,  59 
Wis.  425,  18  N.  E.  324  (1884)  ;  State  v.  Schultz,  11  Mont.  429,  28  Pac.  G43 
(1892). 


Ch.4)  NOTICE.  167 

PEOPLE  ex  rel.  LODES  v.  DEPARTMENT  OF  HEALTH  OF 
CITY  OF  NEW  YORK. 

(Court  of  Appeals  of  New  York,  1907.     189  N.  Y.  187,  82  N.  E.  187,  13  L.  R. 
A.  [N.  S.]  894.) 

Appeal  from  Supreme  Court,  Appellate  Division,  Second  Depart- 
ment. 

Mandamus  by  the  People  of  New  York,  on  the  relation  of  George 
Lodes,  against  the  Department  of  Health  of  the  City  of  New  York, 
to  compel  the  board  of  health  of  the  respondent  to  rescind  its  action  re- 
voking permits  issued  to  the  relator  to  sell  milk  in  the  borough  of 
Brooklyn.  From  an  order  of  the  Appellate  Division  (116  App.  Div. 
890,  102  N.  Y.  Supp.  1145),  affirming  an  order  of  the  Special  Term  (51 
Misc.  Rep.  190,  100  N.  Y.  Supp.  788),  granting  a  peremptory  writ, 
respondent  appeals.  Reversed,  unless  the  relator  within  20  days  elects 
to  demand  an  alternative  writ,  in  which  case  proceedings  should  be 
remitted  to  the  Special  Term. 

Haight,  J.  On  the  17th  day  of  April,  1903,  the  board  of  health 
of  the  department  of  health  of  the  city  of  New  York  issued  to  the  re- 
lator, George  Lodes,  six  permits  to  sell  and  deliver  milk  from  wagons 
and  from  his  store  in  the  borough  of  Brooklyn,  which  permits  were  re- 
voked by  the  board  of  health,  without  notice  to  him,  on  the  17th  day  of 
January,  1906.  Thereupon  the  relator  applied  for  a  peremptory  writ 
of  mandamus  to  compel  the  board  of  health  to  rescind  its  action  in 
revoking  the  permits,  alleging  that  there  was  no  public  necessity  for 
the  revocation  of  the  permits;  that  the  action  of  the  board  was  ar- 
bitrary and  unreasonable,  tyrannical  and  oppressive  in  the  extreme, 
and  beyond  the  power  and  authority  conferred  upon  it  by  law.  On  the 
hearing  of  such  application,  the  board  of  health  presented  affidavits 
showing  that  the  relator,  his  wife,  and  the  drivers  of  his  wagons  had 
been  four  times  convicted  of  selling,  or  offering  for  sale,  adulterated 
milk,  and  that  their  action  in  revoking  his  permits  was  based  upon 
such  repeated  violations  of  the  law,  and  that  by  reason  thereof  they 
deemed  him  an  unfit  person  to  traffic  in  milk.  The  Special  Term 
granted  the  peremptory  writ  prayed  for,  and  the  affirmance  of  that 
order  by  the  Appellate  Division  is  now  brought  up  for  review. 

The  Sanitary  Code  of  the  city  of  New  York,  which  was  continued 
in  force  by  the  charter  of  the  city  (section  1172,  c.  4:6G,  p.  499,  Laws 
1901),  provides :  "Section  56.  No  milk  shall  be  received,  held,  kept, 
offered  for  sale  or  delivered  in  the  city  of  New  York  without  a  per- 
mit, in  writing,  from  the  board  of  health  and  subject  to  the  conditions 
thereof."  The  provisions  of  the  Sanitary  Code,  alluded  to,  have  been 
held  to  be  reasonable  and  a  valid  exercise  of  the  police  powers,  and 
violative  of  no  provision  of  the  Constitution,  either  state  or  federal. 
People  ex  rel.  Lieberman  v.  Vandecarr,  175  N.  Y.  440,  67  N.  E.  913, 
108  Am.  St.  Rep.  781,  affirmed  199  U.  S.  552,  26  Sup.  Ct.  144,  50  L. 


168  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

Ed.  305.  It  has  also  been  held  that  the  board  of  health  has  power 
to  revoke  permits  to  sell  milk,  notwithstanding"  no  ordinance  had  been 
adopted  by  the  board  authorizing-  such  revocation.  Metropolitan  Milk 
&  Cream  Co.  v.  City  of  New  York,  113  App.  Div.  377,  98  N.  Y.  Supp. 
394,  affirmed  in  this  court  186  N.  Y.  533,  78  N.  E.  1107.  These  ques- 
tions we  regard  as  settled. 

The  only  question  remaining  to  be  disposed  of  is  as  to  whether  the 
relator  was  entitled  to  notice  and  a  hearing  by  the  board  of  health 
before  revoking  his  permits.  The  answer  to  this  question  may  depend 
upon  the  soundness  of  the  relator's  contention  that  the  permits  issued 
to  him  were  property,  of  which,  under  the  Constitution,  he  cannot  be 
deprived  without  due  process  of  law.  He  maintains  that  he  has  es- 
tablished and  built  up  a  business  of  selling  milk  at  his  store  and  has  a 
regular  line  of  customers  whom  he  supplies  daily;  that  he  has  estab- 
lished a  milk  route  over  which  his  wagons  are  sent  daily  distributing 
milk  to  the  inhabitants  of  the  city  in  that  locality;  and  that  this  es- 
tablished business  has  become  property,  of  which  he  cannot  be  de- 
prived. But  the  good  will  of  his  business,  so  established,  must  not 
be  confounded  with  the  permits  granted  to  him  to  engage  in  that  busi- 
ness. He  was  never  licensed  to  sell  impure  and  adulterated  milk,  and 
after  he  had  obtained  his  permits  to  sell  and  undertook  the  securing 
of  customers,  he  knew  that  he  was  engaging  in  a  business  which  must 
be  conducted  under  the  supervision  of  the  board  of  health  of  the  city 
subject  to  the  police  powers  of  the  state,  and  that  such  permits  were 
subject  to  revocation.  He  knew  that  the  permits  contained  no  con- 
tract between  the  state,  or  the  board  of  health,  and  himself,  giving  him 
any  vested  right  to  continue  the  business,  and  that  it  would  become  the 
duty  of  the  board  to  revoke  his  license,  in  case  he  violated  the  statute, 
or  the  conditions  under  which  it  was  granted. 

Milk  is  an  article  of  food  extensively  used  by  our  inhabitants  and 
is  chiefly  relied  upon  to  support  the  lives  of  infant  children.  If  im- 
pure or  adulterated,  or  polluted  with  germs  of  dangerous  or  infectious 
diseases,  its  use  becomes  highly  dangerous,  and  the  health  and  wel- 
fare of  the  public  demand  speedy  and,  in  some  cases,  instant  prevention 
of  its  distribution  to  the  people.  While  it  is  the  duty  of  the  board  of 
health  to  watch  and,  through  its  inspectors,  detect  violations  of  the 
statute  and  the  conditions  imposed  by  it,  it  has  been  given  no  judicial 
power  to  hear,  try,  and  determine  such  violations,  but  must  act  upon 
the  information  obtained  by  it  through  its  own  channels  of  inquiry. 
In  Cooley's  Constitutional  Limitations  (7th  Ed.)  p.  887,  it  is  said  that: 
"Dealers  may  also  be  compelled  to  take  out  a  license,  and  the  license 
may  be  refused  to  a  person  of  bad  reputation,  or  be  taken  away  from 
a  party  detected  in  dishonest  practices."  [The  court  then  cites,  and 
quotes  from,  Crowley  v.  Christensen,  137  U.  S.  86,  11  Sup.  Ct.  13,  34 
L.  Ed.  620,  Dent  v.  West  Virginia,  129  U.  S.  114,  9  Sup.  Ct.  231, 
.32  L.  Ed.  623,  Metropolitan  Board  of  Excise  v.  Barrie,  34  N.  Y.  657, 
and  Matter  of  Lyman,  160  N.  Y.  96,  54  N.  E.  577.1 


Ch.  4)  NOTICE.  169 

We  incline  to  the  view  that  the  authorities  to  which  reference  has 
been  made  are  conclusive  upon  the  subject;  and,  ahhough  the  relator 
had  estabhshed  a  business  and  secured  customers  under  the  permits 
granted  to  him,  the  permit  itself  cannot  be  treated  as  property  in  any 
legal  or  constitutional  sense,  but  was  a  mere  license  revocable  by  the 
power  that  was  authorized  to  issue  it.  The  statute,  as  we  have  seen, 
has  given  the  board  of  health  no  power  to  hear,  try,  or  determine  cases. 
Its  duties  are  therefore  not  judicial,  but  executive  or  administrative, 
and  at  times  must  be  exercised  summarily,  as  was  said  in  Metropolitan 
Board  of  Health  v.  Heister,  37  N.  Y.  G61 :  "The  power  to  be  exercised 
by  this  board  upon  the  subjects  in  question  is  not  judicial  in  its  char- 
acter. It  falls  more  properly  under  the  head  of  an  administrative  du- 
ty." The  court  in  that  case  had  under  consideration  the  question  of 
the  abating  of  a  nuisance,  or  the  recovery  of  a  penalty  therefor,  oc- 
casioned by  the  alleged  maintenance  of  a  slaughterhouse  in  a  densely 
populated  portion  of  the  city  in  such  a  manner  as  to  endanger  the 
health  of  the  inhabitants.  But  we  see  no  reason  why  the  power  of 
the  board  of  health  in  that  case  should  differ  from  the  powers  of  the 
board  in  this  case.  Each  have  reference  to  the  preservation  of  the 
public  health,  and,  if  their  powers  are  administrative  in  that  case,  they 
must  be  in  this  case.  [The  court  then  cites  and  quotes  from  People 
ex  rel.  Copcutt  v.  Board  of  Health,  140  N.  Y.  1,  35  N.  E.  320,  23  L. 
R.  A.  481,  37  Am.  St.  Rep.  522,  ante,  p.  139.]  See,  also.  People  ex 
rel.  Schau  v.  McWilliams,  185  N.  Y.  92,  77  N.  E.  785,  in  which  Chief 
Judge  Cullen  has  recently  reviewed  the  authorities  upon  the  subject, 
pointing  out  the  difference  between  judicial  powers  and  the  action  of 
administrative  or  executive  officers. 

The  powers  of  the  members  of  the  board  of  health  being  admin- 
istrative merely,  they  can  issue  or  revoke  permits  to  sell  milk  in  the 
exercise  of  their  best  judgment,  upon  or  without  notice,  based  upon 
such  information  as  they  may  obtain  through  their  own  agencies,  and 
their  action  is  not  subject  to  review  either  by  appeal  or  by  certiorari. 
Child  V.  Bemus,  17  R.  I.  230,  21  Atl.  539,  12  L.  R.  A.  57 ;  State  ex 
rel.  Cont.  Ins.  Co.  v.  Secretary  of  State,  40  Wis.  220;  Wallace  v. 
Mayor,  etc.,  of  Reno,  27  Nev.  71,  73  Pac.  528,  63  L.  R.  A.  337,  103 
Am.  St.  Rep.  747.  If,  however,  their  action  is  arbitrary,  tyrannical, 
and  unreasonable,  or  is  based  upon  false  information,  the  relator  may 
have  a  remedy  through  mandamus  to  right  the  wrong  which  he  has 
suffered.  If  the  relator  can  show  that  he  and  those  acting  for  him  have 
not  been  convicted  of  violating  the  statute  and  the  conditions  imposed 
in  the  granting  of  the  permits,  and  that  consequently  he  is  a  fit  and 
proper  person  to  engage  in  the  sale  and  distribution  of  milk  among  the 
inhabitants  of  the  city,  then  he  would  be  entitled  to  the  relief  asked  for. 
But  if  he  desired  to  submit  such  evidence,  he  should  have  asked  for 
an  alternative  rather  than  a  peremptory  writ.  If.  however,  the  charge 
of  the  board  is  true  that  he  has  been  convicted  of  the  offenses  charged 
the  number  of  times  stated,  the  conclusion  is  irresistible  that  he  was  an 


170  ADMINISTRATIVE   POWER   AND   ACTION,  (Part    1 

improper  person  to  be  intrusted  with  the  permit  of  the  city  to  dispense 
to  the  inhabitants  of  the  city  a  food  product  that  was  hable,  if  adulter- 
ated, to  endanger  the  health  of  the  people. 

It  is  now  contended,  however,  that  the  members  of  the  board  of 
health  are  judicial  officers  and  act  as  such  by  virtue  of  the  provisions 
of  section  1173  of  the  Greater  New  York  charter.  3  Laws  1901,  p. 
500,  c.  466.  It  will  be  necessary  to  consider  the  whole  section,  for  we 
think  the  subsequent  provisions  indicate  the  intention  and  purpose  of 
the  former.  It  is  as  follows:  "The  actions,  proceedings,  authority, 
and  orders  of  said  board  of  health  shall  at  all  times  be  regarded  as 
in  their  nature  judicial,  and  be  treated  as  prima  facie  just  and  legal. 
All  meetings  of  said  board  shall  in  every  suit  and  proceeding  be  taken 
to  have  been  duly  called  and  regularly  held,  and  all  orders  and  pro- 
ceedings to  have  been  duly  authorized,  unless  the  contrary  be  proved. 
All  courts  shall  take  judicial  notice  of  the  seal  of  said  board  and  of 
the  signature  of  its  secretary  and  chief  clerk."  Were  these  provisions 
intended  to  change  the  character  of  the  board  of  health  from  admin- 
istrative to  judicial  officers?  We  think  not.  They  do  not  state  that 
the  board  shall  act  judicially,  or  that  its  orders  shall  be  regarded  and 
treated  as  the  orders  of  a  judge  or  court,  but  merely  that  they  shall  be 
regarded  in  their  nature  judicial,  and  that  they  shall  be  treated  as  prima 
facie  just  and  legal,  and  that  all  orders  and  proceedings  have  been  duly 
authorized.  To  our  minds  it  is  quite  apparent  that  the  legislative 
purpose  and  intent  was  to  invest  the  orders  and  proceedings  of  the 
board  of  health  with  the  presumption  that  they  were  duly  authorized 
and  were  just  and  legal,  and  that  it  was  not  intended  to  change  the 
members  of  the  board  from  administrative  to  judicial  officers. 

These  provisions  have  already  been  the  subject  of  judicial  con- 
sideration, with  a  result  that  accords  with  our  views.  In  the  case  of 
Golden  v.  Health  Department  of  City  of  N.  Y.,  31  App.  Div.  420,  421, 
47  N.  Y.  Supp.  623,  Justice  Rumsey  says :  "It  is  quite  true  that  it  is 
provided  that  the  action,  proceedings,  authority,  and  orders  of  the  board 
of  health  shall  at  all  times  be  regarded  as  in  their  nature  judicial,  and 
be  treated  as  prima  facie  just  and  legal.  This  provision  of  the  statute 
has  been  in  existence  for  many  years,  but  it  has  never  been  regarded 
as  making  the  board  of  health  a  court  whose  orders  are  final  and 
conclusive.  Indeed,  it  makes  no  provision  for  any  such  thing.  The 
statute  prescribes  the  effect  which  shall  be  given  to  these  orders,  and 
that  is  that  they  shall  be  regarded  as  prima  facie  legal.  Thus  much 
was  clearly  within  the  power  of  the  Legislature;  and  the  statute  im- 
poses upon  persons  who  question  the  orders  of  the  board  of  health 
in  such  cases  the  duty  of  establishing  that  the  facts  upon  which  they 
are  based  do  not  exist,  or  that  the  orders  themselves  are  beyond  the 
authority  given  to  the  board  by  the  law.  Further  than  that  the  stat- 
ute does  not  go." 

City  of  Buffalo  v.  Chadeayne,  134  N.  Y.  163,  31  N.  E.  443,  was  an 
action  to  recover  a  penalty  for  an  alleged  violation  of  an  ordinance 


Ch.  4)  NOTICE.  171 

prohibiting  the  erection  of  a  wooden  building  within  the  fire  Hmits  of 
the  city.  The  common  council  had  passed  a  resolution  giving  the  de- 
fendant permission  to  erect  such  building.  He  thereupon  entered  upon 
the  construction  of  the  building  and  incurred  liabilities  for  work  and 
material  and  had  a  property  interest  in  them.  Thereafter  the  com- 
mon council  rescinded  the  permit,  and  after  the  defendant  had  com- 
pleted the  building  the  city  brought  action  for  a  penalty.  It  was  held 
that,  after  the  defendant  had  entered  upon  the  construction  of  the 
building  pursuant  to  the  permit,  and  had  entered  into  contracts  and 
incurred  liabilities,  he  acquired  a  vested  right  of  property  therein  of 
which  he  could  not  be  deprived.  This  case  is  not  in  conflict  with  those 
to  which  we  have  referred,  but  rather  is  in  accord  therewith,  and 
illustrates  the  difference  that  exists  between  permits  under  which  a 
vested  right  may  be  acquired  and  those  in  which  such  rights  do  not 
vest.  One  is  a  permit  to  construct  a  building,  and  the  other  a  permit 
to  peddle  milk.  To  the  same  effect  is  Dobbins  v.  Los  Angeles,  195  U. 
S.  223,  25  Sup.  Ct.  18.  49  L.  Ed.  169,  and  City  of  Lowell  v.  Archam- 
bault,  189  Mass.  70,  75  N.  E.  65,  1  L.  R.  A.  (N.  S.)  458. 

The  order  should  be  reversed,  and  the  application  for  a  mandamus 
denied,  with  costs  in  all  courts,  unless  the  relator  within  20  days  elects 
to  demand  an  alternative  writ,  in  which  case  the  proceedings  should 
be  remitted  to  the  Special  Term,  and  the  costs  should  abide  the  final 
award  of  costs. 

Vann,  J.  (dissenting).  If  the  order  revoking  the  license  of  the  re- 
lator was  an  administrative  act,  no  notice  to  him  was  required;  but, 
if  it  was  an  act  done  in  the  exercise  of  judicial  power,  notice  and  an 
opportunity  to  be  heard  were  essential  before  he  could  be  deprived 
of  the  right  to  carry  on  a  lawful  business.  The  Greater  New  York 
charter  provides  that :  "The  actions,  proceedings,  authority  and 
orders  of  said  board  of  health  shall  be  at  all  times  regarded  as  in  their 
nature  judicial  and  be  treated  as  prima  facie  just  and  legal."  Laws 
1901,  p.  500,  c.  466,  §  1173.  While  it  is  difficult  to  see  how  all  acts 
of  the  board  of  health  can  be  "in  their  nature  judicial,"  the  Legislature 
had  the  right  to  provide  that  they  should  be  so  regarded,  and  in  view 
of  its  express  command  I  fail  to  see  how  we  can  hold  that  the  order  of 
revocation  was  an  administrative  act.  Notice  was  given  in  the  only 
case  involving  the  power  to  revoke  that  has  been  before  us  prior  to 
the  one  now  under  consideration.  Metropolitan  ]\Iilk  &  Cream  Co.  v. 
City  of  New  York,  113  App.  Div.  377,  98  N.  Y.  Supp.  894 ;  186  N.  Y. 
533,  78  N.  E.  1107.  While  summary  action  is  often  necessary  in  cases 
affecting  the  public  health,  still  the  danger  from  delay  caused  by 
giving  short  notice  is  less  than  the  danger  that  may  arise  from  action 
with  no  notice  at  all.  The  respondent  should  at  least  have  had  an 
opportunity  to  raise  an  issue  as  to  whether  he  had  ever  been  convicted 
by  a  court  of  competent  jurisdiction  of  violating  the  Sanitary  Code, 
or  to  show  that  any  judgment  of  conviction  had  been  reversed  or  set 
aside. 


172  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

Moreover,  a  license  under  the  police  power,  as  distinguished  from 
the  taxing-  power,  involves  the  right  to  regulate,  but  not  to  prohibit, 
and  it  cannot  be  exercised  capriciously  or  arbitrarily.  As  the  right  to 
revoke  is  not  expressly  conferred,  but  is  implied  from  the  right  to 
grant,  the  rule  against  arbitrary  or  capricious  action  applies  with 
equal  force  to  the  revocation  of  licenses.  One  of  the  most  efifective 
safeguards  against  the  arbitrary  acts  of  public  officials  is  an  op- 
portunity to  be  heard.  The  revocation  of  the  respondent's  license 
involved  the  destruction  of  his  business,  which  was  useful,  legitimate, 
and  profitable.  Since  the  pov^^er  to  revoke  is  not  expressly  given,  but 
is  implied  from  the  power  to  grant,  I  think  the  law  also  implies  that 
notice  must  be  given  before  an  act  can  be  done  which  involves  such 
serious  loss  to  the  licensee.  This  involves  the  conclusion  that  the  rev- 
ocation of  such  a  license  as  the  orle  in  question  is  in  its  essence  judi- 
cial, independent  of  the  statutory  requirement  that  it  shall  be  so  re- 
garded.    I  vote  to  affirm. 

Cuivi^EN,  C.  J.,  and  O'Brien,  Edward  T.  Bartlett,  PIiscock,  and 
Chase,  ]].,  concur  with  Haight,  J.  Vann,  J.,  reads  dissenting 
opinion. 


SECTION  23.— IN  REMOVAL  FROM  OFFICE 


DULLAM  V.  WILLSON. 

(Supreme  Coin-t  of  Micliigan,  1SS4.  r)3  Mich.  392,  19  N.  W.  112,  51  Aiu. 
Rep.  128.) 

Quo  warranto. 

Champlin,  J.*"  *  *  *  That  issue  is  whether,  under  the  Con- 
stitution and  laws  of  Michigan,  the  Governor  has  power  to  remove  a 
state  officer  by  such  action  as  was  taken  in  this  case,  viz. :  An  act  of 
removal  evidenced  by  writing,  under  the  hand  and  seal  of  the  execu- 
tive, filed  in  the  executive  office,  with  notice  thereof  to  the  officer  re- 
moved, communicating  to  him  the  alleged  grounds  of  removal,  but 
without  giving  him  notice  of  charges,  complaint  or  claim  of  official 
misconduct  or  neglect  of  duty,  or  opportunity  of  hearing,  or  de- 
fense.    *     *     * 

The  Constitution  (article  12,  §  S)  provides  that  "the  Governor  shall 
have  power  and  it  shall  be  his  duty,  except  at  such  time  as  the  Legis- 
lature may  be  in  session,  to  examine  into  the  condition  and  admin- 
istration of  any  public  office,  and  the  acts  of  any  public  officer,  elective 
or  appointed,  to  remove  from  office  for  gross  neglect  of  duty,  or  for 
corrupt  conduct  in  office,   or  any  other  misfeasance  or  malfeasance 

40  Only  a  part  of  the  opinion  of  Champlin,  J.,  is  printed. 


Ch.  4)  NOTICE.  173 

therein,  either  of  the  following  state  officers,  to  wit :  The  Attorney 
General,  *  *  *  or  any  other  officer  of  the  state,  except  legisla- 
tive and  judicial,  elective  or  appointed,  and  to  appoint  a  successor  for 
the  remainder  of  their  respective  unexpired  term  of  office,  and  re- 
port the  causes  of  such  removal  to  the  Legislature  at  its  next  session." 
This  provision  was  not  contained  in  the  Constitution  of  1835.  It  was' 
added  to  the  present  Constitution,  by  amendment,  by  the  Legislature 
of  1863  (Laws  1861,  p.  588),  ratified  by  the  people  in  1862.     *     *     * 

It  will  be  observ^ed  that  the  section  of  the  Constitution  under  con- 
sideration only  authorizes  the  Governor  to  remove  for  specified  causes. 
He  is  not  authorized  to  exercise  the  power  at  his  pleasure  or  caprice. 
It  is  only  when  the  causes  named  exist  that  the  power  conferred 
can  be  exercised.  It  follows  as  a  necessary  consequence  that  the  fact 
must  be  determined  before  the  removal  can  be  made.  It  is  also  clear 
that  the  fact  must  be  determined  by  some  tribunal  invested  with  judi- 
cial power,  for  a  determination  whether  specified  causes  exist  is  the 
exercise  of  judicial  functions.  Judicial  determination  of  facts  must 
rest  upon  and  be  preceded  by  notice,  proof  and  hearing.  And  the 
first  question  is,  what  is  the  proper  tribunal  in  which  such  facts  are 
to  be  ascertained?  In  my  opinion  this  provision  of  the  Constitution 
requires  no  legislation  to  make  it  effective.  Read  in  the  light  of  the 
history  of  the  times,  and  the  surrounding  circumstances  when  it  was 
adopted,  the  grant  of  power  is  to  the  Governor  coupled  wath  the  duty 
enjoined  to  examine  into  the  condition  and  administration  of  any 
public  office,  and  to  examine  into  the  acts  of  any  public  officer,  and  to 
remove  from  office  for  gross  neglect  of  duty,  or  for  corrupt  conduct 
in  office,  any  of  the  officers  specified.  The  amendment  for  this  pur- 
pose clothes  him  with  judicial  power.  It  is  implied  in  the  grant,  and 
without  it  the  grant  would  be  nugatory  and  ineffectual  to  accomplish 
the  purposes  for  which  it  was  given.     ^■'-     *     * 

The  counsel  for  the  respondent,  while  granting  this,  insist  that  such 
removal  cannot  be  made  without  charges,  notice  and  an  opportunity 
for  defense,  and  this  I  consider  the  important  question  in  the  case. 

Unless  it  is  the  manifest  intention  of  the  section  under  considera- 
tion that  the  proceedings  should  be  ex  parte  as  well  as  summary,  a  re- 
moval without  charges,  notice  and  an  opportunity  for  defense  can- 
not be  upheld.  The  exercise  of  such  power,  in  such  manner,  would  be 
too  despotic  for  any  attempt  at  vindication  in  a  country  which  boasts  of 
the  utmost  liberty  compatible  with  the  safety  of  the  state,  and  is  en- 
tirely opposed  to  the  genius  of  our  free  institutions.  I  do  not  think 
the  people,  when  they  adopted  this  amendment,  intended  or  supposed 
that  they  were  placing  such  unlimited  power  in  the  hands  of  any 
man.     *     =i=     =i= 

In  Ramshay's  Case,  18  Ad.  &  El.  (N.  S.)  190,  it  was  said:  "The 
Chancellor  has  authority  to  remove  a  judge  of  a  county  court  only 
on  the  implied  condition  prescribed  by  the  principles  of  eternal  jus- 
tice, that  he  hears  the  party  accused.     He  cannot  legally  act  upon  such 


174  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

an  occasion  without  some  evidence  being-  adduced  to  support  the 
charges,  and  he  has  no  authority  to  remove  for  matters  unconnected 
with  inabihty  or  misbehavior;  and  where  evidence  has  been  given  in 
support  of  them  we  think  we  cannot  inquire  into  the  amount  of  evi- 
dence or  the  balance  of  evidence,  the  Chancellor  acting  within  his 
■jurisdiction,  being  the  constituted  judge  upon  this  subject."  In  Wil- 
liams V.  Bagot,  3  B.  &  C.  786,  Mr.  Justice  Bayley  said :  "It  is  contrary 
to  common  justice  that  a  party  should  be  concluded  unheard."  The 
case  of  The  Queen  v.  The  Archbishop  of  Canterbury,  1  El.  &  El.  545, 
arose  under  a  statute  which  enacted  that  a  curate,  whose  license  shall 
have  been  revoked  by  the  bishop,  might  "appeal  to  the  archbishop  of 
the  province,  who  should  confirm  or  annul  such  revocation  as  to  him 
shall  appear  just  and  proper."  An  appeal  was  taken  to  the  archbishop, 
who,  without  giving  the  appellant  an  opportunity  to  be  heard,  con- 
firmed the  revocation.  Lord  Campbell  said:  "No  doubt  the  archbishop 
acted  most  conscientiously,  and  with  a  sincere  desire  to  promote  the 
interests  of  the  church ;  but  we  all  think  that  he  has  taken  an  erroneous 
view  of  the  law.  He  was  bound  to  hear  the  appellant,  and  he  has 
not  heard  him.  It  is  one  of  the  first  principles  of  justice,  that  no  man 
should  be  condemned  without  being  heard."  Mr.  Justice  Wightman 
said  "that,  ex  debito  justitise,  every  one  has  a  right  to  be  heard  before 
he  is  condemned." 

An  act  of  Parliament  gave  authority  to  the  bishop  to  decide,  upon 
affidavit  or  upon  his  own  knowledge,  whether  or  not  the  duties  of 
the  parish  had  been  inadequately  performed,  in  consequence  of  the 
negligence  of  the  incumbent,  and  whenever  it  should  so  appear  to  his 
satisfaction  he  could,  by  certain  proceedings,  appoint  a  curate  in  place 
of  the  incumbent.  The  bishop,  proceeding  upon  his  own  knowledge, 
without  notice  or  an  opportunity  afforded  to  the  incumbent,  adjudged 
that  the  duties  of  the  vicarage  of  the  parish  were  inadequately  per- 
formed by  reason  of  the  vicar's  negligence,  and  proceeded  to  appoint 
another  person  to  the  place.  The  incumbent  refused  to  surrender  to 
the  new  appointee.  Lord  Lyndhurst  held  that  the  language  of  the  act 
imported  inquiry,  and  a  judgment  as  the  result  of  that  inquiry.  He 
said:  "He  is  to  form  his  judgment.  It  is  to  appear  to  him  from  affi- 
davits laid  before  him ;  but,  is  it  possible  to  be  said  that  it  is  to  appear 
to  him  and  that  he  is  to  form  his  judgment  from  affidavits  laid  before 
him  on  the  one  side,  without  hearing  the  other  party  against  whom 
the  charge  of  negligence  is  preferred,  which  is  to  aft'ect  him  in  his 
character  and  in  his  property?  That  he  is  to  come  to  that  conclusion, 
without  giving  the  other  party  an  opportunity  of  meeting  the  affida- 
vits by  contrary  affiidavits,  and  without  being  heard  in  his  own  de- 
fense— without  having  an  opportunity  even  of  being  summoned  for 
that  purpose — as  in  the  present  instance ;  there  being  no  summons,  for 
the  monition  was  proceeded  in  immediately,  without  any  intimation 
whatever  from  the  bishop  of  his  intention  to  proceed,  to  the  party 
against  whom  that  requisition  proceeds."     And  he  further  held  that 


Ch.  4)  NOTICE.  175 

when  the  bishop  proceeded,  "on  his  own  knowledge,  the  same  course 
:  of  proceeding  is  necessary,  because  a  party  has  a  right  to  be  heard  for 
'  the  purpose  of  explaining  his  conduct ;  he  has  a  right  to  call  witnesses, 
I  for  the  purpose  of  removing  the  impression  made  on  the  mind  of  the 
i  bishop;  he  has  a  right  to  be  heard  in  his  own  defense."  Capel  v. 
1     Child,  2  Cr.  &  J.  558. 

[The  opinion  then  cites  and  discusses  the  following  cases :  Page  v. 
I  Hardin.  8  B.  Mon.  (Ky.)  672 ;  Willard's  Appeal,  4  R.  I.  601 ;  Com.  v. 
I  SHfer,  25  Pa.  23,  64  Am.  Dec.  680;  Meade  v.  Deputy  Marshal,  1 
I  Brock.  324,  Fed.  Cas.  No.  9,372;  Chase  v.  Hathaway,  14  Mass.  222.] 
I  The  line  of  authority  is  not  by  any  means  exhausted,  but  enough 
I  cases  have  been  cited  to  show  that  the  action  of  the  Governor  in  this 
I  case  cannot  be  upheld  as  a  legal  and  proper  exercise  of  the  power 
conferred  upon  him.  There  must  be  charges  specifying  the  particu- 
j  lars  in  which  the  officer  is  subject  to  removal.  It  is  not  sufficient  to 
follow  the  language  of  the  Constitution.  The  officer  is  entitled  to 
I  know  the  particular  acts  of  neglect  of  duty,  or  corrupt  conduct,  or 
j  other  act  relied  upon  as  constituting  malfeasance  or  misfeasance  in 
!  office,  and  he  is  entitled  to  a  reasonable  notice  of  the  time  and  place 
!  when  and  where  an  opportunity  will  be  given  him  for  a  hearing,  and  he 
i  has  a  right  to  produce  proof  upon  such  hearing.  What  length  of 
i     time  notice  should  be  given  we  do  not  determine ;    it  must  depend,  in 

a  great  measure  upon  the  circumstances  of  each  case. 
I  I  have  carefully  examined  the  authorities  cited  upon  the  brief  of  the 
•  learned  counsel  for  relator  in  support  of  the  position  that  no  notice  is 
'  required  to  be  given,  and  that  the  action  of  the  executive  is  final  and 
\  conclusive.  It  is  sufficient  to  say,  without  commenting  specially  upon 
j  them,  that  the  reasoning  of  those  cases  does  not  commend  itself  .to  my 
'  judgment.  They  appear  to  me  to  be  opposed,  not  only  to  the  decided 
!  weight  of  authority,  but  also  to  the  fundamental  principles  of  justice. 
j  In  what  I  have  said  upon  the  law  of  this  case  I  have  not  cast  the  least 
I  imputation  upon  the  motives  of  the  executive.  The  same  presumptions 
!'  of  good  faith  and  honest  desire  to  act  within  legal  and  constitutional 
/  limits  are  accorded  to  him  as  to  either  of  the  other  co-ordinate  branches 
;  of  the  government,  and  his  motives  are  not  the  subject  of  criticism. 
'  I  have  no  doubt  that  he  acted  under  the  impression  that  he  was  entirely 
within  the  line  of  his  duty  as  well  as  of  law,  and  that  he  believed  that 
the  removal  of  respondent  was  demanded  by  the  best  interests  of  the 
public  service. 

Be  that  as  it  may,  the  relator  has  not  made  out  a  case  for  the  in- 
tervention of  the  court,  and  judgment  must  be  entered  for  respond- 
ent." 

41  Accord:  Com.  ex  rel.  Bowman  v.  Slifer.  25  Pa.  23  (1855);  Ham  v. 
Board  of  Police  of  Boston,  142  Mass.  90,  7  N.  E.  540  (1886);  State  v.  Haw- 
kins, 44  Ohio  St.  98.  5  N.  E.  228  (1886);  State  ex  rel.  Denison  v.  St.  Louis, 
90  Mo.  19,  1  S.  W.  757  (1886);  State  ex  rel.  Attorney  General  v.  Smitli,  35 
Neb.  13,  52  N.  W.  700,  16  L.  R.  A.  791  (1892). 


176  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

1 

WILCOX  V.  PEOPLE.  ' 

(Suiu-eme  Court  of  Illinois,  3S7S.     90  111.   ISG.) 

Sheldon,  J.*-  *  *  *  i^  being  found  that  the  power  of  re- 
moval existed  in  the  Governor,  the  inquiry  remains  whether  it  was 
validly  exercised.  Relators  say  not — that  the  power  granted  was 
judicial  in  its  nature,  and  should  have  been  exercised  according  to 
judicial  methods;  that  is,  there  should  have  been  a  specific  charge,, 
notice  of  it,  opportunity  for  defense  and  hearing,  and  proof  to  support 
the  charge.  Undoubtedly,  the  Governor  can  only  remove  for  some 
one  of  the  causes  specified ;  but  the  removal  here  was  for  one  of 
these  causes — incompetency.  The  Governor  ascertained  the  existence 
of  the  cause  here,  and  made  the  removal  on  account  of  it.  The  Con- 
stitution is  silent  as  to  who  shall  ascertain  the  case  of  removal  or  the 
mode  of  its  ascertainment.  It  simply  gives  to  the  Governor  the  power 
to  remove  any  officer  whom  he  may  appoint,  in  case  of  incompetency, 
etc.  It  follows,  then,  that  it  is  with  the  Governor,  who  is  to  act  in  the 
matter,  to  determine,  himself,  whether  the  cause  of  removal  exists, 
from  the  best  lights  he  can  get;  and,  no  mode  of  inquiry  being  pre- 
scribed for  him  to  pursue,  it  rests  with  him  to  adopt  that  method  of 
inquiry  and  ascertainment  as  to  the  charge  involved  which  his  judg- 
ment may  suggest  as  the  proper  one,  acting  under  his  official  responsi- 
bility, and  it  is  not  for  the  courts  to  dictate  to  him  in  what  manner  he 
shall  proceed  in  the  performance  of  his  duty,  his  action  not  being 
subject  to  their  revision.  The  Constitution  of  this  state  not  only  de- 
clares that  the  powers  of  the  government  of  the  state  shall  be  divided 
into  three  distinct  departments,  but  has  expressly  prohibited  the  ex- 
ercise of  any  of  the  powers  properly  belonging  to  one  by  either  of  the 
others. 

In  the  case  of  People  v.  Bissell,  19  111.  229,  232,  233,  G8  Am.  Dec. 
591,  where  this  court  discussed  very  fully  the  theory  of  distribution 
of  powers,  and  the  extent  of  limitations  upon  each  department,  it 
was  said:  "The  Governor  is  and  must  be  as  independent  of  us  as  is 
the  Legislature,  or  as  we  are  of  either  of  them."  "When  acting  with- 
in the  limits  assigned  to  each,  neither  can  control  nor  dictate  to  the 
others." 

The  case  of  People  v.  Higgins,  15  111.  110,  is  a  parallel  one  with  the 
present,  except  that  the  power  of  removal  was  exercised  there  by 
trustees  of  an  institution  instead  of  the  executive,  and  it  covers  in 
principle  the  precise  question  here  raised,  and  must,  we  think,  be  con- 
sidered as  decisive  of  it  against  the  relators.  The  case  is  a  very  fully 
considered  one,  and  contains  so  full  an  exposition  of  the  principles 
applicable  to  this  subject  that  further  enlargement  upon  them  is  super- 
fluous.    The  case  involved  the  title  to  office  of  the  medical  superin- 

42  Oulj'  a  portion  of  the  opinion  of  Sheldon,  J.,  is  printed. 


Ch.  4)  NOTICE.  177 

tendent  of  the  Illinois  Hospital  for  the  Insane,  an  institution  founded 
by  the  state.    The  medical  superintendent  was  an  officer  constituted  by 
'   the  act  creating  the  trustees  who,  as  a  body  corporate,  governed  the 
I   institution.     His  tenure  of  office  was  for  ten  years.     Under  the  law, 
power  was  given  to  the  trustees  to  remove  the  superintendent  for  in- 
i   fidelity  to  the  trust  reposed  in  him,  or  incompetency  to  the  discharge 
i   thereof.    The  trustees  removed  Higgins,  the  superintendent,  by  resolu- 
j   tion,  for  the  reason  alleged  that  he  did  not  "possess  the  kind  of  quali- 
I  fications  which  are  necessary  to  the  discharge  of  the  duties  of  said 
i  office."    It  was  there  insisted,  as  here,  that  specific  and  formal  charges 
should  have  been  preferred  against  the  superintendent,  that  he  should 
have  had  a  formal  notice  of  the  time  and  place  of  the  trial  of  the 
charges,   and  that   a   regular   trial   should   have   been   had  upon  the 
testimony  of  witnesses.     To  which  the  court  answered :    "The  statute 
has  made  none  of  these  formalities  necessary,  nor  does  the  common  law 
so  interpose  and  attach  itself  to  the  statute  as  to  require  them."     It 
was  said  that  the  trustees,  in  determining  as  to  the  existence  of  the 
cause  of  removal,  might  act  upon  their  own  observation,  and  exercis- 
ing their  own  best  judgment,  as  well  as  upon  facts  detailed  by  others 
or  upon  the  opinions  of  witnesses.     The  case  answers  the  objection 
made   here,    that   the  executive   order  of   removal   is   void   upon   its 
I  face,  as  not   stating  any  lawful  ground  of  removal.     In  stating  the 
,  cause  of  removal,  the  order  has  adopted  the  very  language  employed 
I  in  the  Higgins  Case,  which  the  court  held  there  as  describing  "in- 
;  competency,"   as  being  language  equivalent  thereto — a  delicate  and 
I  inoffensive  form  of  stating  that  cause  of  removal.     The  order,  then, 
i  does  state  that  cause  of  removal,  the  language  used  to  describe  it 
I  having  the  warrant  of  judicial  sanction, 

1  In  other  cases  this  court  has  decided  that  where  the  law  has  vested 
I  a  quasi  judicial  power,  even  in  subordinate  administrative  officers, 
I  the  court  will  only  inquire  whether  the  officer  has  acted  within  the 
j  power,  and  will  not  attempt  to  substitute  its  own  judgment  or  dis- 
i  cretion  for  that  of  the  officer,  and  will  not  supply  any  other  conditions 
I  to  the  exercise  of  their  discretionary  power  than  such  as  the  law  has 
I  provided.  Spencer  &  Gardner  v.  People,  68  111.  510;  Elliott  v.  City 
i  of  Chicago,  48  111.  293 ;  Porter  v.  Rockford,  Rock  Island  &  St.  Louis 
'  R.  Co.,  76  111.  561.     The  doctrine  of  these  cases  applies  with  added 

force  to  a  case  of  executive  action.     *     *     *  ■13 
j 

■      *3  Accord :    State  ex  rel.  Attorney  General  v.  Doherty,  25  La.  Ann.  3  19,  13 
I  Am.  Rep.  131  (1873) ;    Keenan  v.  Perry,  24  Tex.  213  (1859). 
j      See,  also,  State  v.  McGarry,  21  Wis.  496   (ISGS). 
[  Fe.Adm.Law. — ^12 

i 
I 
I 


178  ADMINISTRATIVE  POWER  AND   ACTION.  (Part    1 

PEOPLE  ex  rel.  GERE  v.  WHITLOCK. 

(Court  of  Appeals  of  New  York,  1883.     92  N.  Y.  101.) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
ni  the  Fourth  Judicial  Department,  entered  upon  an  order  made 
October  20,  1882,  which  affirmed  a  judgment  in  favor  of  defendants, 
entered  upon  a  decision  of  the  court  on  trial  at  Special  Term. 

This  action  was  in  the  nature  of  a  quo  warranto  to  try  the  title  of 
defendants  to  the  office  of  police  commissioners  of  the  city  of  Syra- 
cuse. 

On  the  29th  day  of  August,  1881,  the  mayor  of  Syracuse  addressed 
to  each  of  the  relators  a  written  notice  that  he  had  removed  him 
from  the  office  of  police  commissioner,  of  which  he  was  then  an  in- 
cumbent, by  virtue  of  the  act  (chapter  559,  Laws  of  1881),  and  on  the 
same  evening  he  submitted  to  the  common  council  a  statement  of 
his  reasons  for  such  removal,  together  with  a  message  appointing  the 
defendants  to  fill  the  vacancies  thereby  created.  No  notice  of  the 
mayor's  intention  had  been  given  to  the  relators,  or  to  either  of  them, 
no  charges  were  presented,  and  no  hearing,  or  opportunity  of  hear- 
ing, or  explanation  was  afforded  to  them. 

The  defendants  immediately  afterward  qualified  as  such  police  com- 
missioners, and  took  possession  of  the  books  and  papers  of  the  board, 
and  have  ever  since  exercised  the  duties  of  the  office  to  the  exclusion  of 
the  relators. 

The  statute  authorized  the  mayor  to  remove  from  office  any  com- 
missioner "for  any  cause  deemed  sufficient  to  himself." 

Danforth,  J.**  *  *  *  The  next  position  of  the  relators  raises 
a  more  interesting  general  question :  Whether  they  were  entitled  to 
have  notice  or  be  heard  before  the  final  action  of  the  mayor.  At 
common  law  there  could  be  no  doubt  as  to  this.  Bagg's  Case,  11 
Coke,  99,  Rex.  v.  Gaskin,  8  Term  Rep.  209,  and  many  others  cited 
by  the  learned  counsel  for  the  appellant,  stand  upon  the  principle  that 
no  one  shall  be  condemned  unheard;  but  this,  too,  when  applied  to 
the  term  of  office,  is  within  the  control  of  the  Legislature,  and  as  it 
gave  the  power  to  appoint,  may  also  give  the  power  to  remove.  Const, 
art.  10,  §  3;  People  ex  rel.  Sims  v.  Board  of  Fire  Commissioners  of 
the  City  of  New  York,  73  N.  Y.  437.  In  the  act  before  us  (Laws 
1881,  c.  559,  §  1)  the  power  of  removal  has  been  expressly  conferred 
upon  the  mayor,  to  be  exercised  as  to  him  shall  seem  meet.  In  People 
ex  rel.  Mayor  v.  Nichols,  79  N.  Y.  582,  cited  by  the  appellant,  the 
statute  requires,  not  only  that  cause  ior  removal  should  exist,  but 
also  that  the  officer  should  have  an  opportunity  to  be  heard.  The 
statute  before  us  lacks  both  conditions.  No  opportunity  to  be  heard  is 
given,  and  it  is  enough  if  the  mayor  thinks  there  is  sufficient  cause.    It 

4  4  The  statement  of  facts  is  abridged,  and  only  a  portion  of  the  opinion  of 
Danforth,  J.,  is  printed. 


Ch.  4)  NOTICE.  179 

may  or  may  not  exist,  except  in  his  imagination ;  but  his  conclusion  is 
final. 

The  diligence  of  appellants'  counsel  has  found  no  case  like  it,  and 
those  cited  by  him  do  not  apply.  They  require  either  the  actual  ex- 
istence of  "cause,"  or  "sufficient  cause"  for  removal,  and  so  by  impli- 
cation impose  investigation  before  action,  or  by  express  language  give 
a  hearing  to  the  accused  member  or  official.  Here  the  removal  is  to 
be  determined  summarily,  and  is  intrusted  to  the  unrestrained  dis- 
cretion of  the  m'ayor.  Nor  is  this  without  a  precedent.  Among  other 
cases,  like  power  is  given  to  the  Governor  over  the  superintendent  of 
public  works,  and  to  the  latter  over  his  assistant  superintendents 
(Const.  N.  Y.  art.  5,  §  3),  and  to  the  board  of  commissioners  of  the 
fire  department  of  New  York  over  certain  subordinates  (Laws  1873, 
c.  335,  §  28).  Under  that  statute  it  was  held  that  the  power  of  removal 
was  to  be  exercised  at  pleasure,  except  in  cases  where  there  was  an 
express  limitation  to  a  removal  after  notice  and  a  hearing,  and  for 
cause.    People  ex  rel.  Sims  v.  Board  of  Fire  Com'rs,  supra. 

We  are,  therefore,  of  opinion  that  no  reason  for  a  reversal  of  the 
judgment  appealed  from  is  shown,  and  it  should  be  affirmed.''^ 


PEOPLE  ex  rel.  FONDA  v.  MORTON  et  al. 

(Court  of  Appeals  of  New  York,  1896.     148  N.  Y.  1.56,  42  N.  E.  538.) 

Appeal  from  Supreme  Court,  General  Term,  Third  Department. 
Proceedings    on   the   relation   of   Fred   P.    Fonda   against   Levi   P. 
Morton  and  others  for  a  writ  of  mandamus.     From  an  order  of  the 
General  Term,  without  opinion,  affirming  an  order  of  the  Special  Term 
denying  the  writ,  relator  appeals.    Affirmed. 

Andrews,  C.  J.  The  relator,  an  honorably  discharged  Union  sol- 
:  dier,  was  appointed  on  the  29th  of  January,  1888,  an  orderly  in  the 
'  capitol  at  Albany,  at  a  salary  of  $60  a  month,  and  continued  to  act  as 
I  orderly  until  the  28th  of  February,  1895,  when  he  was  discharged 
}  by  the  superintendent  of  public  buildings,  with  the  approval  of  the 
ji  trustees,  consisting  of  the  Governor  of  the  state,  the  Lieutenant 
i  Gctvernor,  and  the  Speaker  of  the  Assembly.  His  duties  were  to  wash 
1  and  clean  floors,  and  to  act  as  policeman  and  guide  in  the  capitol. 
j  After  his  discharge  he  applied  for  a  peremptory  writ  of  mandamus 
I  directing  his  reinstatement  in  his  position,  claiming  that  his  discharge 
I  was  unlawful.  It  appeared  from  the  return  to  his  application  that  he 
I  was  discharged  for  cause,  or,  as  stated  therein,  for  ''incompetency  and 

I  _45  See  Trainor  v.  Board  of  Auditors,  89  Mich.  162,  .50  N.  W.  809,  15  L.  R.  A. 
I  95  (1891) :  Supervisors  given  power  to  remove  officer  when  in  tlieir  opinion 
[  be  is  incompetent  to  execute  properly  the  duties  of  his  office,  or  when,  on 

charges  and  evidence,  they  shall  he  satisfied  that  he  has  heen  guilty  of  official 
I  misconduct  or  habitual  or  willful  neglect  of  duty,   construed  to  permit  re- 

Moval  for  incompetence  without  charges,  notice,  or  hearing. 


180  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

conduct  inconsistent  with  said  position."  The  relator,  without  denying 
the  fact  so  alleged  in  the  return,  insisted,  notwithstanding-,  that  he 
was  entitled  to  the  peremptory  writ,  and  the  fact  so  returned  must  be 
taken  as  true  in  this  proceeding.  The  discharge  of  the  relator  was 
not  preceded  by  formal  charges,  or  by  notice  to  the  relator,  or  an  op- 
portunity to  be  heard  as  to  the  cause  of  his  dismissal.  This  presents 
the  only  question  in  the  case — whether  the  relator  was  entitled  to  a 
notice  and  hearing  before  he  could  be  removed. 

By  section  4,  subd.  3,  of  the  public  building  law  (chapter  227  of  the 
Laws  of  1893),  which  was  a  substantial  re-enactment  of  chapter  349 
of  the  Laws  of  1883,  the  superintendent  of  public  buildings  is  author- 
ized, "subject  to  approval  of  the  trustees,  to  appoint  all  persons  neces- 
sary in  the  maintenance  department  of  the  public  buildings  and 
grounds  under  his  charge,  and  suspend  and  remove  any  of  them,  and 
prepare  rules  and  regulations  for  their  government."  In  the  appro- 
priation bills  passed  by  the  Legislature  in  each  successive  year,  com- 
mencing with  1886,  there  was  inserted  in  the  clause  making  an  appro- 
priation for  the  care  of  the  public  buildings,  the  salary  of  the 
superintendent,  and,  the  services  of  orderlies  and  watchmen,  and 
other  expenses,  a  proviso  that  the  orderlies  and  watchmen  who  should 
receive  any  portion  of  the  money  so  appropriated  "shall  be  persons 
who  are  citizens  of  the  state  of  New  York,  and  who  served  in  the 
Union  army  or  navy  during  the  late  war,  and  have  been  honorably 
discharged  therefrom;  and  such  honorably  discharged  persons  shall 
not  be  subject  to  civil  service  rules  of  examination."  Laws  1886,  p. 
650.  If  there  was  no  other  legislation  affecting  the  present  question, 
the  right  to  discharge  orderlies  employed  in  the  capitol,  summarily, 
would  admit  of  no  question.  The  power  to  remove  employes  is  given, 
in  express  terms,  by  the  ]:)ublic  building  act,  to  the  superintendent,  with 
the  approval  of  the  trustees,  without  qualification ;  and,  even  in  the 
absence  of  such  specific  power,  the  rule  is  well  settled  that  the  power 
to  appoint  to  the  public  service  carries  with  it,  to  the  appointing  power, 
in  the  absence  of  limiting  words  or  of  a  fixed  term,  the  right  to  remove 
the  appointee  at  pleasure.  People  v.  Robb,  126  N.  Y.  180,  27  N.  E. 
267,  and  cases  cited. 

But  the  relator  rehes  upon  chapter  716  of  the  Laws  of  1894, 
which  was  an  act  amending  chapter  312  of  the  Laws  of  1884,  entitled 
"An  act  respecting  the  employment  of  honorably  discharged  Union 
soldiers  and  sailors  in  the  public  service  of  the  state  of  New  York," 
as  containing  a  limitation  upon  the  power  of  removal  of  Union  soldiers 
and  sailors  employed  in  the  public  service,  applicable  to  the  position 
of  the  relator.  The  original  act  of  1884  related  to  preferences  in 
public  employment  only,  and  declared  that  honorably  discharged  Union 
soldiers  and  sailors,  not  incapacitated,  and  possessing  the  requisite 
qualifications,  should  be  preferred  for  appointment  and  employment 
in  the  public  departments  and  upon  all  public  works  of  the  state.  This 
act  was  amended  by  chapter  464  of  the  Laws  of  1887  by  extending  it 


Ch.  4)  NOTICE.  181 

so  as  to  subject  cities,  towns,  and  villages  to  the  same  rule,  and  a 
section  was  added  enjoining  upon  all  officials  and  persons  possessing 
the  power  of  appointment  a  faithful  compliance  with  the  act.  The 
obligation  to  give  preference  was,  after  the  passage  of  the  original 
act  and  the  amendment  of  1887,  and  cognate  acts,  sought  to  be  en- 
forced in  the  courts  by  Union  soldiers,  applicants  for  appointment  to 
public  office;  among  others,  by  an  applicant  for  the  office  of  superin- 
tendent of  public  works  of  a  village  (People  v.  Village  of  Saratoga 
Springs,  54  Hun,  16,  7  N.  Y.  Supp.  125) ;  for  employment  as  court 
crier  (People  v.  Wendell,  57  Hun,  362,  10  N.  Y.  Supp.  587) ;  for  the 
office  of  village  attorney  (People  v.  Village  of  Little  Falls  [Sup,]  8  N. 
Y.  Supp.  512 ;  Id.,  54  Hun,  638,  8  N.  Y.  Supp.  960) ;  collector  of  taxes 
(People  V.  Barden,  55  Hun,  612,  8  N.  Y.  Supp.  960);  health  inspector 
(People  V.  Summers,  56  Hun,  644,  9  N.  Y.  Supp.  700) ;  and  in  other 
cases.  These  attempts  generally  failed.  The  relator  in  such  an  ap- 
plication could  not  show  that  he  was  entitled  in  preference  to  other 
Union  soldiers,  and  the  decision  of  the  appointing  power  as  to  fitness, 
actual  or  relative,  must  generally,  from  the  nature  of  the  case,  be  final. 
This  court  in  People  v.  Lathrop,  142  N.  Y.  113,  36  N.  E.  805,  had 
occasion  to  consider  whether  the  act  of  1884,  giving  preferences  in 
public  employments  to  Union  soldiers  and  sailors,  limited  the  power  of 
removal  of  a  Union  soldier,  who  held  a  public  employment ;  and  the 
court  held  that  it  affixed  no  restriction  on  this  power,  and  in  no  way 
affected  the  power  of  removal,  as  it  existed  independently  of  the  act. 

The  amendment  of  1894  for  the  first  time  introduced  into  the  act 
a  restriction  on  the  power  of  removal  of  Union  soldiers  and  sailors 
employed  in  the  public  service.  The  first  section  of  the  act  of  1884 
was  amended  so  as  to  read  as  follows:  "Section  1.  In  every  public 
department  and  upon  all  the  public  works  of  the  state  of  New  York, 
and  of  the  cities,  towns  and  villages  thereof,  and  also  in  non-competi- 
tive examinations  under  the  civil  service  rules,  laws  or  regulations  of 
the  same,  wherever  they  apply,  honorably  discharged  Union  soldiers 
and  sailors  shall  be  preferred  for  appointment  and  employment;  age, 
loss  of  limb  or  other  physical  impairment  which  does  not  in  fact  in- 
capacitate, shall  not  be  deemed  to  disqualify  them,  provided  they 
possess  the  business  capacity  necessary  to  discharge  the  duties  of  the 
position  involved.  And  in  all  cases  the  person  having  the  power  of 
employment  or  appointment,  unless  the  statute  provides  for  a  definite 
term,  shall  have  the  power  of  removal  only  for  incompetency  and 
conduct  inconsistent  with  the  position  held  by  the  employe  or  ap- 
pointee; and  in  case  of  such  removal  or  such  refusal  to  allow  the 
preference  provided  for  in  this  act  of  and  for  any  such  honorably 
discharged  Union  soldier,  or  sailor,  or  marine,  for  partisan,  political, 
personal  or  other  cause  except  incompetency  and  conduct  inconsistent 
with  the  position  so  held,  such  soldier,  sailor  or  marine  so  wrong- 
fully removed  or  refused  such  preference,  shall  have  a  right  of  ac- 
tion in  any  court  of  competent  jurisdiction  for  damages  as  for  an 


182  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

act  wrong-fully  done,  in  addition  to  the  existing  right  of  mandamus; 
the  burden  of  proving  such  incompetency  and  inconsistent  conduct 
as  a  question  of  fact,  shall  be  upon  the  defendant.  But  the  provi- 
sions of  this  act  shall  not  be  construed  to  apply  to  the  position  of  pri- 
vate secretary  or  deputy  of  any  ofificial  or  department,  or  to  any 
other  person  holding  a  strictly  confidential  position." 

It  is  apparent  that  the  legislation  culminating  in  the  act  of  1894  has 
nothing  primarily  to  do  with  what  is  called  the  "civil  service  sys- 
tem." It  was  intended  to  create  a  privileged  class,  entitled  to  prefer- 
ential employment  in  subordinate  positions  in  the  public  service,  the 
foundation  of  the  preference  being  meritorious  service  as  soldiers  and 
sailors  in  the  war  for  the  preservation  of  the  Union.  The  original 
act,  which  provided  for  a  preference  only  in  the  original  appointment 
or  employment,  but  gave  no  security  of  tenure,  was  supplemented  in 
this  respect  by  the  amendment  of  1894.  The  legislation  as  it  now 
stands  not  only  gives  a  preference  in  public  appointments  and  em- 
ployments to  Union  soldiers  and  sailors,  but  makes  the  appointees  ir- 
removable, except  upon  the  particular  grounds  specified.  The  re- 
moval clause  was  intended  to  prevent  interference  with  their  tenure 
for  political  or  partisan  or  personal  reasons.  But  the  statute  recog- 
nized the  principle  that  incompetent  persons,  or  those  whose  con- 
duct was  inconsistent  with  the  discharge  of  their  duties,  should  not 
be  retained  in  the  public  service,  however  meritorious  their  prior 
service  may  have  been.  The  statute  operates  as  a  limitation  upon 
the  power  of  removal,  which  must  be  observed  by  the  officers  or 
body  having  the  appointing  power,  and  it  enacts  special  remedies  for 
its  violation. 

In  the  present  case  the  removal  was  made  for  the  cause  specified 
in  the  statute,  and  nothing  appears  upon  the  record  tending  to  show 
that  the  power  was  not  exercised  in  good  faith,  and  in  the  pviblic 
interest.  The  claim  that  the  relator  was  entitled  to  prior  notice  and 
hearing  is  not  supported  by  any  language  in  the  act.  If  he  was  so 
entitled,  it  results  from  some  general  rule  of  law  implied  from  the 
fact  that  the  power  of  removal  was  not  unrestricted,  but  could  only 
be  exercised  for  the  causes  specified.  It  is  important  to  notice  the 
scope  of  such  an  implication,  if  it  exists  under  the  statute  in  question. 
Tlie  act  applies  to  employes  of  every  grade  in  the  public  service  or 
on  the  public  works  of  the  state,  and  the  cities,  towns,  and  villages 
thereof.  The  preference  is  given,  not  only  in  clerical  or  other  sub- 
ordinate positions,  but  to  every  person  seeking  public  employment  as 
a  laborer  on  the  canals,  or  on  the  streets  of  a  city,  or  in  any  capacity, 
however  humble.  If  employment  once  secured  can  only  be  terminated 
after  a  notice  and  hearing,  and  something  akin  to  a  formal  adjudica- 
tion upon  evidence,  the  system  would  become  almost  intolerable. 
Many  things  difficult  to  define  in  words,  which  show  incompetency 
in  an  employe,  or  disregard  of  his  duty,  and  which  would  justify  dis- 
missal in  the  mind  of  a  reasonable  employer,  would  often  elude  a 


Ch.  4)  NOTICE.  183 

formal  investigation.  There  are  many  statutes  on  the  statute  book 
relating  to  the  employment  and  removal  of  police  officers,  clerks,  and 
employes  in  municipalities,  which  expressly  or  by  implication  require 
that  the  power  of  removal  shall  only  be  for  cause,  after  notice  and 
hearing  of  the  person  whose  removal  is  contemplated.  The  practice 
of  legislation  in  this  state  has  been  to  insert  a  provision  for  notice 
and  hearing  when  this  has  been  intended.  City  of  New  York,  Con- 
solidation Act  (Laws  1873,  c.  335)  §  25;  Id.  (Laws  1882,  c.  410)  §§ 
250,  272,  314;  City  of  Brooklyn,  Laws  1888,  c.  583,  tit.  22,  §  29; 
City  of  Buffalo,  Laws  1870,  c.  519,  tit.  13,  §  3. 

The  acts  cognate  to  the  act  of  1894,  viz.  chapter  119  of  the  Laws 
of  1888  and  chapter  577  of  the  Laws  of  1892,  restricting  the  power  of 
removal  of  Union  soldiers  or  sailors  holding  official  employment  in 
cities  and  counties,  contain  a  provision  that  removals  shall  not  be 
made  "except  for  cause  shown  after  a  hearing  had."  In  view  of  the 
course  of  legislation,  and  the  scope  of  the  act  of  1894,  we  are  of  opin- 
ion that  the  Legislature  intentionally  omitted  to  insert  a  similar  pro- 
vision in  the  statute  in  question. 

We  concur  in  the  conclusion  of  the  General  Term  that  the  Legis- 
lature, having  prescribed  the  grounds  of  removal  in  the  act  of  1894, 
left  it  to  the  removing  power  to  determine  whether  the  facts  existed 
which  authorized  a  removal,  subject  to  responsibility  for  any  willful 
or  perverse  action,  and  that  no  notice  is  required  to  be  given  to  the 
person  whose  removal  is  contemplated,  before  the  power  can  be  ex- 
ercised. 

The  order  should  be  affirmed.     All  concur.     Order  affirmed.** 


SECTION  23.— SUFFICIENCY  OF  NOTICE 


STATE  V.  LAMOS. 

(Supreme  Court  of  Maine,  184G.     2G  Me.  258.)' 

Tenne^y^  J.  The  defendant  is  charged  in  the  indictment  with  the 
offense  of  presuming  to  be  and  of  being  a  common  innholder,  be- 
tween the  1st  day  of  June  and  the  time  of  finding  the  bill  at  the  term 
of  the  court  holden  in  October,  1843,  without  being  licensed  therefor 
according  to  law,  and  without  being  duly  authorized  therefor.  It 
was  admitted  by  the  defendant  that  he  carried  on  the  business  of  a 
common  innholder  as  alleged  in  the  indictment,  and  by  the  prosecuting 
officer  that  he  was  duly  licensed  as  such  for  the  period  during  which 

46  See  In  re  Guden,  171  N.  Y.  529,  64  N.  E.  451  (1902).  See.  also.  Shurtleff 
V.  United  States,  189  U.  S.  311,  23  Sup.  Ct.  535,  47  L.  Ed.  828  (1903). 


184  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

the  offense  was  alleged  to  have  been  committed,  with  the  restriction 
not  to  sell  spirituous  liquors.  But  it  was  insisted  by  the  latter  that 
the  defendant's  license  was  legally  revoked  on  August  5,  1813. 

The  defendant  not  being  charged  with  any  other  offense  than  that 
of  being  a  common  innholder  without  license,  the  correctness  of  the 
instructions  to  the  jury,  that  the  evidence  authorized  a  conviction, 
must  depend  upon  the  legal  revocation  of  that  license.  The  town 
officers,  who  are  authorized  to  grant  a  license,  are  empowered  also 
to  revoke  it,  whenever  any  instance  of  a  breach  of  the  bond  required 
by  Rev.  St.  c.  36,  §  2,  shall  have  come  to  their  knowledge,  and  after 
complaint,  notice  to  the  party  complained  of,  and  a  hearing  thereon. 
Chapter  3G,  §  15. 

The  power  given  by  the  section  referred  to,  to  the  board,  is  im- 
portant, and  its  exercise  may  materially  affect  the  interests  of  those 
against  whom  complaints  may  be  made.  Their  jurisdiction,  like 
that  of  all  inferior  magistrates,  must  appear  affirmatively,  and  cannot 
be  presumed,  or  inferred.  The  authority  to  give  a  hearing,  and  to 
revoke  a  license,  is  not  conferred  without  a  complaint,  and  a  notice  to 
the  party  complained  of. 

It  is  not  necessary  that  the  complaint  should  be  in  writing,  signed 
and  sworn  to  as  the  law  requires  in  complaints  in  criminal  proceedings 
before  a  magistrate,  to  authorize  him  to  issue  a  warrant;  neither  is 
it  indispensable  that  it  should  be  signed  by  any  one ;  but  the  language 
used  in  the  statute  implies  that  the  word  "complaint"  is  to  be  under- 
stood in  its  legal  sense. 

A  breach  of  the  bond  of  a  person  licensed  may  come  to  the  knowl- 
edge of  the  board.  This  alone  is  not  sufficient  to  give  a  hearing  after 
notice;-  but  a  complaint  is  necessary.  The  Legislature  could  not  have 
intended  to  have  made  a  distinction  between  simple  information  of 
the  breach,  and  that  information  given  verbally  to  the  board,  by  way 
of  complaint.  Such  would  be  senseless.  But  it  was  evidently  their 
purpose  that  after  the  fact  of  a  breach  should  become  known  to 
them,  before  they  could  give  the  notice  to  the  person  accused  of  hav- 
ing committed  it,  and  proceed  to  a  hearing,  the  complaint  should  be 
in  writing  and  contain  an  allegation  of  the  charges,  with  specifica- 
tions, and  the  time  when  the  breach  took  place.  Of  all  these  the 
party  complained  of  was  entitled  to  reasonable  notice,  that  he  might 
know  particularly  what  he  was  called  upon  to  answer,  and  have  op- 
portunity to  produce  proof  that  the  charges  were  unfounded.  With- 
out this,  there  would  be  a  looseness  which  would  be  perfectly  anoma- 
lous in  all  proceedings  of  the  same  general  character.  There  would 
be  an  uncertainty  whether  the  evidence  adduced  at  the  hearing  had  re- 
lation to  the  charges  of  which  he  had  notice,  or  others,  which  were 
distinct  therefrom.  If  the  license  should  be  revoked,  it  could  not  ap- 
pear whether  it  was  upon  satisfactory  proof  of  the  charges  alleged, 
when  no  record  or  document  existed  to  show  what  they  were. 

The  order  revoking  the  defendant's  license  is  in  writing,  and  it  is 


Ch.  4)  NOTICE.  185 

therein  stated  that  the  undersigned,  being  a  major  part  of  the  li- 
censing board,  after  notifying  him  of  their  intention  so  to  do,  gave 
him  a  hearing  on  the  charges  preferred  against  him,  and  being  satis- 
fied, beyond  a  reasonable  doubt,  that  he  has  failed  to  keep  the  Wad- 
leigh  House,  according  to  the  restrictions  and  conditions  of  his  bond 
and  license,  did  revoke  said  license,  rendering  it  of  no  effect,  inform- 
ing him  at  the  same  time  of  the  fact.  No  written  complaint  or  copy 
thereof  was  introduced  at  the  trial  as  the  basis  of  the  proceedings  of 
the  board,  nor  was  there  evidence  that  any  was  before  them  at  the 
hearing.  The  order  of  revocation  was  introduced  without  objection, 
but  if  it  contained  no  statement  showing  a  jurisdiction  in  the  board, 
it  certainly  was  insufficient  for  that  purpose ;  and  it  contains  nothing 
which  indicates  that  they  proceeded  under  a  written  complaint.  It 
does  not  state  what  charges  were  preferred  against  the  defendant; 
and  they  could  have  jurisdiction  only  on  complaint  of  a  charge  that 
the  condition  in  the  bond,  which  the  law  authorized  them  to  insert,  had 
been  broken.     Crosby  v.  Snow  et  al.,  16  Me.  121. 

The  board  found  the  defendant  guilty  of  not  keeping  the  Wad- 
leigh  House  according  to  the  conditions  and  restrictions  of  his  bond 
and  license,  and  for  that  cause  his  license  was  revoked.  Whether 
this  was  the  charge  preferred  against  him  or  not,  or  whether  the 
conditions  and  restrictions  in  the  bond  and  license,  which  they  found 
he  failed  to  observe  were  those  which,  could  be  legally  required,  even 
if  written  complaint  was  not  necessary,  no  proof  was  adduced  to 
show. 

Exceptions  sustained.^^ 


PEOPLE  ex  rel.  SHUSTER  v.  HUMPHREY  et  al. 
(Court  of  Appeals  of  New  York,  1898.     15G  N.  Y.  231,  50  N.  E.  8G0.) 

Appeal  from  Supreme  Court,  Appellate  Division,  Second  Depart- 
ment. 

Application  by  the  people,  on  the  relation  of  Adam  Shuster,  for  a 
writ  of  certiorari  against  William  A.  Humphrey  and  others,  Com- 
missioners of  Police  of  the  City  of  Poughkeepsie.  From  an  order 
of  the  Appellate  Division,  made  by  a  divided  court  (22  App.  Div. 
632,  48  N.  Y.  Supp.  1112),  affirming  a  dismissal  of  relator  from  the 
police  force  of  the  city  of  ^Poughkeepsie,  he  appeals.     Reversed. 

Vann,  J.  On  the  15th  of  April,  1895,  the  relator  was  appointed 
a  patrolman  of  the  city  of  Poughkeepsie,  after  passing  the  civil  serv- 
ice examination  as  provided  by  law.  He  was  a  veteran  of  the  Civil 
War,  and  had  never  served  in  the  Confederate  army  or  navy.     After 

47  See,  also.  State  v.  Kellogg,  14  Mont.  426,  36  Pac.  957  (1894)  ;  Lillien- 
feld's  Case,  92  Va.  818,  23  S.  E.  882  (1896) ;  State  ex  rel.  Sullivan  v.  Tomah. 
80  Wis.  198,  49  N.  W.  753  (1891)  ;  Pebrson  v.  Ephraliu  City,  14  Utah,  147,  46 
Pac.  657  (1896);  Czarra  v.  Board  of  Medical  Supervisors,  24  App.  D.  C.  251 
(1904). 


186  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

serving  two  years  in  the  Union  army  and  receiving  an  honorable 
discharge,  he  enHsted  in  the  navy,  and  served  until  the  close  of  the 
war,  when  he  was  honorably  discharged  from  that  branch  of  the 
service  also.  On  the  5th  of  May,  1897,  he  was  charged  by  the  mayor 
of  the  city  "with  having  made  an  illegal  arrest,  in  that,  without  a  war- 
rant and  without  probable  cause,  he,  on  or  about  April  23d,  1897, 
illegally  arrested  and  detained  and  brought  to  the  station  house  one 
Lewis  Richardson,  and  declined  to  make  a  charge  against  him,  where- 
upon said  Richardson  was  discharged  by  the  sergeant  in  charge." 
On  the  7th  of  May  following,  he  was  tried  upon  this  charge,  and  evi- 
dence was  given  tending  to  show  that  he  made  an  arrest,  without  a 
warrant,  for  a  misdemeanor  not  committed  in  his  presence,  upon 
the  complaint  of  a  man  who  claimed  that  the  person  arrested  had 
assaulted  him,  and  that  he  was  drunk  and  disorderly.  At  the  in- 
stant that  this  complaint  was  made,  the  alleged  wrongdoer  was  run- 
ning away,  and  the  relator  placed  him  under  arrest,  and  took  him  to 
police  headquarters,  with  the  understanding  that  the  complainant  was 
to  follow  immediately,  and  make  a  formal  complaint.  Upon  arriv- 
ing at  the  police  station,  the  relator  declined  to  make  any  charge  him- 
self against  the  prisoner,  who,  as  the  complainant  did  not  appear, 
was  discharged,  after  a  detention  not  exceeding  five  minutes  in  dura- 
tion. 

As  the  relator  was  an  honorably  discharged  soldier,  and  had  never 
served  in  the  Confederate  army  or  navy,  the  commissioners  had  no 
power  to  remove  him  "except  for  cause  shown  after  a  hearing  had." 
Laws  1892,  c.  577.  The  charter  of  the  city  of  Poughkeepsie,  which  is 
a  public  act,  provides  that  the  board  of  police  commissioners  of  that 
city  have  power  "to  punish  any  member  of  the  police  force  on  convic- 
tion of  any  legal  offense,  or  neglect  of  duty,  or  violation  of  rules,  or 
absence  without  leave,  or  any  conduct  injurious  to  the  public  peace  or 
welfare,  or  immoral  conduct,  or  conduct  unbecoming  an  officer,  or 
other  breach  of  discipline,  by  reprimand,  forfeiting  or  withholding 
pay  for  a  special  time,  or  dismissal  from  the  force,  but  no  more  than 
thirty  days'  pay  shall  be  forfeited  for  any  offense."  Laws  1896,  c. 
425,  §§  141,  193. 

The  relator  was  entitled  to  a  trial  upon  charges  preferred,  and 
the  commissioners  had  no  right  to  remove  him  until  after  they  had 
duly  convicted  him  on  one  or  more  of  such  charges.  This  is  neces- 
sarily implied  from  the  words  "hearing,"  "cause  shown,"  "conviction," 
etc.,  as  used  in  said  statutes.  After  a  lawful  conviction  upon  a  def- 
inite charge  made  under  the  statute,  they  had  the  right  to  remove  him 
for  that  "cause  shown,"  but  they  had  no  right  to  remove  him  for  a 
cause  not  appearing  in  the  charge  preferred,  and  not  embraced  in  the 
issue  that  was  tried.  They  could  not  convict  him  of  one  thing,  and  re- 
move him  for  another.  If  they  convicted  him  of  making  an  illegal  ar- 
rest, they  could  not  remove  him  on  that  ground,  and  on  one  or  more 
other  grounds  not  embraced  in  the  charge  nor  covered  by  the  evi- 


I 


Ch.  4)  NOTICE.  187 

dence;  yet  this  is  what  the  commissioners,  according  to  their  return, 
actually  did.  Their  minutes,  which  are  part  of  the  return,  show  that, 
at  the  close  of  the  evidence,  a  motion  was  made,  seconded,  and  unan- 
imously carried,  ''that  Officer  Shuster  he  dismissed  from  the  force  for 
incompetency  and  trying  to  deceive  the  board."  According  to  this 
statement  of  their  official  action,  which  is  all  that  appears  on  the  sub- 
ject in  their  original  minutes,  the  commissioners  do  not  appear  to 
have  convicted  the  relator  upon  the  charge  preferred,  or  to  have 
dismissed  him  on  that  ground,  but  upon  two  independent  grounds,  as 
to  neither  of  which  was  there  a  trial  or  hearing.  In  another  part  of 
their  return,  however,  the  commissioners  state  that,  "after  the  testi- 
mony had  been  taken,  the  board  unanimously  found  the  relator  guilty 
of  the  charges,  and  dismissed  him  from  the  force  because  of  such 
finding,  and  for  incompetency  and  endeavoring  to  deceive  the  board." 
This  was  not  an  entry  upon  their  minutes  or  a  record  made  at  the  time 
of  their  official  action,  but  a  statement  framed  in  response  to  the  com- 
mand of  the  writ  of  certiorari. 

Assuming  that  the  charge  of  making  an  illegal  arrest  was  sufficient 
to  justify  a  conviction,  and  assuming  also  that  the  board  actually 
convicted  the  relator  of  that  ofifense,  still  no  charge  of  incompetency 
or  endeavoring  to  deceive  the  board  was  made  against  him,  and  he 
was  neither  tried  nor  convicted  upon  either  of  those  grounds.  Yet 
the  learned  commissioners  themselves  say  that  they  removed  him  for 
incompetency  and  an  attempt  to  deceive  them,  which  were  not 
charged,  as  well  as  for  an  illegal  arrest,  which  was  charged.  The 
punishment  which  they  inflicted  was  the  most  severe  that  the  law  au- 
thorizes, and  we  are  compelled  to  assume  that,  in  fixing  the  penalty  to 
be  inflicted,  the  incompetency  and  deceit  had  an  influence  upon  their 
minds.  If  it  did  not,  why  did  they  say  so  in  their  return,  and  why 
did  they  formally  enter  upon  their  minutes  the  charges  not  preferred 
and  never  tried,  as  the  only  grounds  upon  which  they  acted  in  dis- 
missing the  relator  from  the  force  ? 

We  can  hardly  conceive  that  the  commissioners,  as  reasonable  men, 
would  dismiss  a  patrolman  who  was  in  good  standing,  so  far  as  the 
record  discloses,  simply  because  he  made  an  honest  mistake  in  ar- 
resting a  man  without  a  warrant  when  he  had  no  right  to  do  so.  The 
arrest  was  not  accompanied  by  actual  violence,  nor  by  any  aggravating 
or  annoying  conduct,  and  the  prisoner  was  deprived  of  his  liberty  'for 
only  a  short  time.  Even  if  a  dismissal,  based  solely  upon  a  convic- 
tion for  making  the  arrest,  would  be  a  reasonable  punishment,  under 
the  circumstances,  the  record  does  not  permit  the  inference  that  the 
removal  was  founded  upon  that  charge  alone,  for  the  commissioners 
say  that  they  dismissed  him  for  other  reasons  also.  The  return  com- 
pels us  to  conclude  that,  in  fixing  the  punishment  to  be  inflicted,  they 
were  influenced  to  some  extent,  at  least,  by  the  "incompetency"  and 
the  effort  at  deceit,  in  relation  to  which  there  was  neither  charge  pre- 
ferred nor  trial  had.     As  we  have  recently  said:    "The  relator  was 


188  ADMINISTRATIVE   POWER  AND  ACTION.  (Part    1 

not  subject  to  removal  except  for  some  legal  cause,  to  be  ascertained 
and  adjudged  as  matter  of  fact  upon  a  hearing."  People  v.  Police 
Commissioners,  155  N.  Y.  40,  44,  49  N.  E.  257.  Yet  he  has  been 
adjudged  guilty  of  one  offense,  and  removed  for  three  offenses,  of 
two  of  which  it  does  not  appear  that  he  had  ever  heard.  We  think 
that  the  commissioners  exceeded  their  power,  and  that  the  order  ap- 
pealed irom  should  be  reversed,  with  costs. 

Parker,  C.  J.,  and  O'Brien,  BarTlett,  and  Martin,  JJ.,  concur 
with  Vann,  J.,  for  reversal.  Gray,  J.,  concurs  with  Haigiit,  J,,  for 
affirmance. 

Order  reversed. 


STATE  ex  rel.  ^lEADER  et  al.  v.  SULLIVAN  et  al. 

(Supreme  Court  of  Ohio,  1898.     58  Ohio  St.  504,  51  N.  E.  48, 
U5  Am.  St.  Rep.  781.) 

Error  to  circuit  court,  Hamilton  county. 

Petition  for  writ  of  quo  warranto  by  the  state,  on  the  relation  of 
Meader  and  others,  against  John  J.  Sullivan  and  others.  A  demurrer 
to  the  answer  was  overruled,  and  the  petition  dismissed.  Relators 
bring  error.     Affirmed. 

The  action  below  was  in  quo  warranto,  brought  by  the  prosecuting 
attorney  of  the  county  of  Hamilton  against  the  defendant  in  error 
Sullivan  and  John  Zumstien,  Louis  Werner,  and  George  M.  Roe. 
Its  purpose  was  to  oust  respondents  from  the  office  of  board  of  su- 
pervisors of  the  city  of  Cincinnati,  and  to  induct  the  relators.  The 
gravamen  of  the  petition  is  that  the  respondents  had  been  removed 
from  office  by  the  mayor  of  the  city  by  virtue  of  section  2G90m,  Rev. 
St.  1897,  after  a  hearing  upon  charges  preferred,  and  yet  respondents 
continued  to  intrude  therein.'*® 

Spear,  C.  J.  (after  stating  the  facts).  Two  questions  are  presented. 
One  relates  to  the  sufficiency  of  the  charges ;  the  other  to  the  action 
of  the  mayor  upon  them.  The  holding  of  the  circuit  court  is  rested 
upon  the  former  consideration. 

Section  2690m,  Rev.  St.  1897,  gives  authority  to  the  mayor  to  ap- 
point the  board  of  supervisors,  and  also  to  remove.  The  latter  authori- 
ty is  in  these  words:  "For  neglect  of  duty  or  misconduct  in  office, 
the  mayor  of  such  city  may  remove  any  member  of  said  board."  This 
language,  taken  by  itself,  may  imply  an  arbitrary  power  of  removal. 
But  that  the  power  is  not  wholly  arbitrary  is  well  settled  in  this  state 
by  the  cases  of  State  v.  Hawkins,  44  Ohio  St.  98,  5  N.  E.  228,  and 
State  V.  Bryson,  44  Ohio  St.  457,  8  N.  E.  470.  Nor  can  its  exercise 
be  lawfully  attempted  until  substantial  charges  involving  neglect  of  du- 
ty or  official  misconduct,  have  been  preferred.  It  is  held  in  the  former 
case,  as  applicable  to  a  removal  by  the  Governor,  that  the  charges  must 

*8  The  rest  of  the  statement  of  facts  is  omitted. 


Ch.  4)  NOTICE.  189 

embody  facts  which,  in  judgment  of  law,  constitute  ofificial  misconduct, 
and  no  reason  is  perceived  why  the  same  strict  test  should  not  apply 
in  the  case  of  removal  by  a  mayor.  While  it  is  true  that  the  holding  of 
office  is  not  compulsory,  and  the  citizen  is  at  liberty  to  accept  or  decline, 
as  seems  to  him  best,  yet  considerations  of  patriotism  and  public  policy 
incline  the  dlisinterested  citizen  to  accept,  and  it  is  manifestly  for  the 
interest  of  the  state  that  men  of  character  should  be  found  willing  to 
fill,  public  positions.  Such  citizens  will  be  less  likely  to  do  so  if  they 
are  to  be  subjected  to  arbitrary  removal,  or  their  reputations  put  in 
jeopardy  by  removal  based  upon  insufficient  charges.  The  public  in- 
terests do  not  require  action  which  shall  be  unjust  to  a  worthy  officer, 
or  which  will  unfairly  smirch  a  good  character ;  and  yet  the  public 
interests  do  require  prompt  action  in  case  of  established  inefficiency 
or  corruption.  And  so  our  statutes  have  provided  remedies  as  to  re- 
movals which,  while  they  do  not  lodge  power  in  the  removing  authori- 
ty which  is  absolutely  arbitrary,  d'o  give  power  which  partakes  of  that 
character. 

In  a  case  under  the  statute  in  question  the  mayor  is  the  sole  judge 
of  the  weight  and  sufficiency  of  the  evidence  given  at  the  hearing.  If 
he  hears  a  complaint  of  neglect  of  duty  or  misconduct  in  office,  upon 
adequate  charges,  and  upon  evidence  tending  to  establish  them,  by  him 
adjudged  sufficient,  removes  the  officer,  his  action  is  practically  final, 
since  no  appeal  lies,  nor  can  error  be  prosecuted.  Hence  the  necessity, 
in  justice  and  common  fairness,  of  his  being  authorized  to  proceed 
only  when  charges  have  been  mad'e  which  embody  facts  that,  in  judg- 
ment of  law,  constitute  neglect  of  duty  or  misconduct  in  office.  As 
said  by  IMechem  in  his  work  on  Public  Officers  (section  452) :  "The 
power  of  removal  so  conferred  must  be  confined  within  the  limits  pre- 
scribed for  it,  and  must  be  pursued  with  strictness.  Hence  it  can  be 
exercised  only  for  the  cause  specified  and  in  the  manner  and  upon  the 
conditions, fixed."  See,  also.  Com.  v.  Slifer,  25  Pa.  23,  64  Am.  Dec. 
680.  And,  with  equal  propriety  may  it  be  added  that  the  finding  and 
order  should  be  so  definite  as  to  show  upon  the  face  of  them,  that  the 
power  has  been  exercised  according  to  law.  This  for  the  reason, 
among  others,  that  the  power  exercised  by  the  mayor  is  not  judicial 
power,  and  the  presumptions  which  attach  to  the  record  of  courts  are 
not  to  be  applied  in  the  same  liberal  sense  to  the  record  of  the  mayor. 
In  McGreger  v.  Supervisors,  37  Mich.  388,  it  is  held  by  Cooley,  C.  J., 
that  "the  removal  from  public  office  is  a  matter  of  serious  conse- 
quence, and  it  is  plain  that  all  the  facts  which  would  justify  it  ought 
properly  to  be  of  record" 

The  charges  here  are  that  Sullivan  knew,  or  should  have  known, 
that  the  tangible  property,  real  and  personal  of  the  street  railway 
company,  subject  to  taxation,  was  $10,000,000.  Yet  he  willfully  con- 
sented to  approve  the  valuation  of  personal  property  at  $835,230,  and 
realty  at  $350,000,  when  he  knew  that  the  value  of  the  said  taxable 
property  was  not  less  than  $10,000,000 ;   with  bad  intent,  etc.    A  simi- 


190  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

lar  allegation  is  made  as  to  the  property  of  the  gas  company.  But  the 
board,  acting  as  a  board  of  equalization,  had,  under  the  statutes,  no 
duty  to  perform  respecting  real  estate,  its  power  of  equalization  being 
confined  wholly  to  personal  property;  and  why  the  confusing  element 
as  to  real  estate  was  incorporated  in  the  charges  must  be  left  to  con- 
jecture. It  so  confuses  the  allegation  that  its  meaning  is  fatally  ob- 
scure. There  is  no  statement  that  Sullivan  or  the  board  undervalued 
the  personal  property,  for  there  is  no  language  equivalent  to  an  aver- 
ment that  the  personalty  of  the  railway  company  was  in  fact  of  higher 
value  than  $835,330.  The  valuation  in  gross  appears  by  the  charges 
to  have  been  much  too  low.  But  it  may  be,  for  anything  that  these 
charges  show  to  the  contrary,  that  the  undervaluation  was  wholly  on 
the  real  estate.  So  that,  as  conclusion,  every  word  in  the  charges  as 
made  may  have  been  true  as  therein  alleged,  and  yet  no  neglect  of  duty 
would  be  shown. 

The  finding  of  the  mayor  is  simply  that  "Sullivan  has  been  guilty 
of  neglect  of  duty."  This  finding,  being  general,  cannot  be  extended 
by  implication  to  involve  a  conclusion  more  comprehensive  or  specific 
than  the  language  of  the  charges;  and  this,  as  we  have  found,  means 
only  that  as  to  the  whole  property  there  was  undervaluation.  In  other 
wordls,  the  legal  meaning  of  the  finding  and  order  is  that,  in  the  judg- 
ment of  the  mayor,  the  defendant  was  guilty  of  neglect  of  duty  be- 
cause he  had  permitted  undervaluation  of  the  property  in  gross,  and 
cannot  be  held  equivalent  to  a  finding  that  he  had  been  so  guilty  with 
respect  to  that  part  only  of  the  property  of  which  the  board  had  juris- 
diction. It  seems  to  us  manifest  that,  considering  the  arbitrary  char- 
acter of  the  power  brought  into  exercise  in  this  case,  the  charges  were 
too  indefinite  to  justify  a  trial,  and  that,  unaided  by  a  specific  finding 
showing  in  what  the  neglect  of  duty  consisted,  the  entire  record  is  not 
sufficient  to  support  an  order  of  removal.*^     *     *      * 


JOYCE  V.  CITY  OF  CHICAGO. 

(Supreme  Court  of  Illinois,  1905.     21G  111.  4GG,  75  N.  E.  184.) 

Hand,  J.^**  *  *  *  It  is  also  urged  that  the  charge  filed  with 
the  commission  by  the  general  superintendent  of  police  is  not  suffi- 
ciently specific.  This  proceeding  is  not  a  common-law  or  criminal  pro- 
ceeding, but  an  investigation.  While  the  plaintifT  in  error  had  the 
right  to  have  the  charge  preferred  against  him  reduced  to  writing,  andl 
in  such  form  that  he  could  clearly  understand  the  ground  assigned  for 
his  removal,  it  was  not  necessary  that  the  charge  should  be  formu- 
lated in  technical  language  similar  to  that  of  a  declaration  or  indict- 
ment. 


*oThe  remainder  of  the  opinion  is  here  omitted.     See  post,  p. 
60  Only  a  portion  of  the  opinion  of  Hand,  J.,  is  printed. 


214. 


Ch.  4)  NOTICE.  191 

In  State  v.  Common  Council  of  the  City  of  Superior,  90  Wis.  612, 
6-i  N.  W.  304,  charges  were  filed  with  the  common  council  against  the 
mayor  of  the  city  for  extorting  sums  of  money  from  policemen  and 
firemen  for  political  purposes.  After  a  hearing  upon  the  charges,  the 
common  council  removed  the  mayor  from  office.  Under  the  Wiscon- 
sin statute  the  mayor  could  not  be  so  removed  "without  cause,  nor  un- 
less charges  are  preferred  against  him  and  an  opportunity  given  him 
to  be  heard  in  his  own  defense."  The  court,  on  page  622,  90  Wis.,  and 
pages  306,  307,  64  N.  W.,  said:  "This  was  not  a  common-law  trial, 
but  an  investigation.  While  the  mayor  had  a  right  to  insist  that  he 
have  a  fair  hearing,  and  that  the  substance  of  the  rules  governing  tri- 
als at  law  should  be  preserved,  he  cannot  require  that  the  same  preci- 
sion and  formality  be  observed  which  are  required  in  criminal  trials  at 
law.  These  principles  govern  the  charges  made,  as  well  as  the  pro- 
cedure. The  charge  does  not  need  to  be  drawn  with  the  accuracy  of 
an  indictment.  It  is  sufficient  if  the  accused  be  furnished  with  the 
substance  of  the  charge  against  him."  Upon  the  trial  the  plaintiff  in 
error  was  represented  by  counsel,  and  no  objections,  as  appears  from 
the  record  filed  as  a  return,  were  made  to  the  written  charge  for  in- 
definiteness  or  otherwise,  and  it  is  too  late  now  for  him  to  raise  the 
objection  that  the  complaint  was  not  sufficiently  specific. 

In  State  v.  Kirkwood,  15  Wash.  298,  46  Pac.  331,  the  relator  was 
removed  from  the  office  of  police  commissioner  of  the  city  of  Seattle 
by  the  mayor  upon  charges,  and  Kirkwood  was  appointed  in  his  place. 
The  relator  brought  suit,  in  the  form  of  an  information  in  the  nature 
of  a  quo  warranto,  to  oust  Kirkwood.  The  court  held  that  in  a  quo 
warranto  proceeding  it  could  examine  the  sufficiency  of  the  charges, 
and  said  (page  300,  15  Wash.,  and  page  332,  46  Pac):  "The  second 
contention  of  appellant,  however,  viz.,  that  the  charges  were  sufficient 
to  support  the  removal  of  relator,  we  think  must  be  sustained.  These 
charges  may  have  been  somewhat  indefinite,  but  no  motion  was  made 
to  make  them  more  definite  or  certain.  No  objection  was  made  to 
them  in  any  way.  The  appellant  went  to  trial  upon  the  complaint  as 
it  was,  and  the  issues  were  found  against  him,  and  we  think  it  is  too 
late  for  him  now  to  raise  the  objection  that  the  complaint  was  indefinite 
and  not  specific.  *  *  *  The  complaint  *  *  *  jg  somewhat 
discursive  and  indefinite,  but  we  think  sufficient  can  be  gathered  from 
the  complaint  to  place  the  relator  upon  trial  for  acts  which  were  in- 
consistent with  the  duties  of  a  public  officer."     *     *     * 


192  ADMINISTRATIVE   POWEIl   AND   ACTION.  (Part 

CHAPTER  V 
HEARING  AND  EVIDENCE 


SECTION  24.— IN  CONNECTION  WITH  LICENSES 


PEOPLE  ex  rel.  PRESMEYER  v.  BOARD  OF  COM'RS  OF  Pf 
LICE  AND  EXCISE  OF  CITY  OF  BROOKLYN. 

(Court  of  Appeals  of  New  York,   1S74.     59  N.  Y.  92.) 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court,  m" 
the  Second  Judicial  Department,  affirming  an  order  of  Special  Term, 
denyhig  a  motion  on  behalf  of  the  relator  that  a  writ  of  prohibition 
issue,  commanding  respondents  to  desist  from  proceedings  to  cancel 
relator's  license  for  the  sale  of  intoxicating  liquors. 

The  relator  had  obtained  a  license  from  the  said  board.  A  com- 
plaint was  made  to  the  board  against  him,  under  section  8,  c.  549, 
Laws  1873,  for  selling  beer  on  Sunday,  by  a  sergeant  of  the  police,  of 
which  complaint  the  following  is  a  copy: 

"Brooklyn,  Feb.  9,  1874. 
"John  S.  Folk,  Superintendent  of  Police: 

"I  hereby  report  George  H.  Presmeyer,  keeper  of  liquor  saloon 
corner  of  Fifth  avenue  and  Twenty-Sixth  street,  for  violation  of  ex- 
cise law,  at  8  :15  p.  m.,  on  the  8th  instant.  Six  men  were  in  the  store 
at  the  time ;  two  classes  of  beer  on  the  counter. 

"Smith  Hall,  Sergeant  in  Command." 

Thereupon  the  board  summoned  relator  to  show  cause  before  them 
why  his  license  should  not  be  revoked  as  prescribed  by  said  section. 
The  relator  appeared  and  protested  against  further  proceedings,  on 
the  ground  that  the  board  had  no  jurisdiction,  and  that  the  com- 
plaint preferred  alleged  no  violation  of  the  excise  law.  These  objec- 
tions were  overruled  by  the  board. 

Grover,  J.i  *  *  *  The  counsel  further  insists  that  section  8 
is  unconstitutional,  for  the  reason  that  it  authorizes  the  conviction  of 
a  party  of  a  crime  without  a  trial  by  jury.  But  it  authorizes  nothing 
more  than  an  inquiry  into  and  determination  of  the  question,  whether 
the  party  licensed  continues  to  be  a  suitable  and  proper  person  to  sell 
intoxicating  liquors,  the  statute  itself  determining  that  a  violator  of 
the  excise  laws,  while  holding  a  license,  is  not  such  a  person.     That 

1  Only  a  portion  of  the  opinion  of  Grover,  J.,  is  printed. 


Ch.  5)  HEARING   AND    EVIDENCE.  193 

the  power  to  license  the  sale  of  intoxicating-  liquors  and  to  cancel  such 
license  when  granted  is  vested  in  the  Legislature,  has  been  determined 
by  this  court.  Metropolitan  Board  of  Excise  v.  Barrie,  34  N.  Y.  657. 
The  mode  and  manner  in  which  this  shall  be  done  rests  in  the  discretion 
of  that  body. 

The  order  of  the  General  Term,  affirming  the  order  of  the  Special 
Term  denying  a  writ  of  prohibition,  must  be  affirmed  with  costs.  All 
concur. 

Order  affirmed.^ 


GACxE  V.  CENSORS  OF  NEW  HAMPSHIRE  ECLECTIC  MEDI- 
CAL SOCIETY. 

(Supreme  Court  of  New  Hampshire,  1SS4.     63  N.  H.  92,  56  Am.  Rep.  492.) 

Petition  for  a  writ  of  mandamus.     Facts  found  by  a  referee. 

Smith,  J.  The  petitioner  alleges  that  having  pursued  the  prescribed 
course  of  study,  and  having  upon  due  examination  been  graduated 
from  the  Eclectic  Medical  College  of  the  city  of  New  York,  a  legally 
chartered  school  authorized  to  confer  degrees  in  medicine  and  surgery, 
and  having  received  a  diploma  from  said  college,  he  presented  himself 
before  the  defendants,  a  board  of  censors  of  the  New  Hampshire  Ec- 
lectic Medical  Society,  January  4,  1882,  and  made  application  to  the 
board  for  a  license  to  practice  medicine,  surgery,  and  midwifery,  in 
this  state,  representing  that  he  had  pursued  the  prescribed  course  of 
study  and  graduated  from  said  college,  and  produced  his  diploma,  and 
offered  himself  for  such  examination  as  the  defendants  might  desire 
to  make ;  that  the  defendants  refused  his  application,  declined  to  give 
him  a  hearing,  and  refused  to  grant  him  a  license.  The  petitioner 
prays  for  a  writ  of  mandamus  commanding  the  defendants  to  issue 
to  him  a  license  to  practice  medicine,  surgery,  and  midwifery,  in  this 
state,^and  for  further  relief. 

The  defendants  answer,  admitting  that  they  are  the  board  of  cen- 
sors of  the  New  Hampshire  Eclectic  Medical  Society.  They  deny  that 
the  petitioner  pursued  the  prescribed  course  of  study,  or  that  he  was 
graduated  upon  due  examination  from  ,said  medical  college,  or  that 
the  college  was  legally  chartered  or  authorized  to  confer  degrees  in 
medicine  and  surgery,  or  that  the  petitioner  had  a  regular  and  proper 
degree  from  the  college  as  alleged.  They  admit  the  other  allegations 
of  the  petition,  but  say  that  the  reason  for  their  refusal  to  issue  a  li- 
cense to  the  petitioner  was  because  it  clearly  appeared  to  and  was  un- 
derstood by  them  that  the  petitioner  was  disqualified  and  unfit  to  prac- 

2  Accord:  Cherry  v.  Commonwealth,  78  Va.  375  (1884). 

See  Com.  v.  Wall,  145  Mass.  216.  13  N.  E.  486  (1887),  licensee  duly  noti- 
fied may  be  proceeded  against  in  his  absence. 

See.  however,  In  re  Peck,  167  N.  Y.  391,  60  N.  E.  775,  53  L.  R.  A.  888 
(1901). 

Fe.Adxi.Law. — 13 


194  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

tice  medicine,  surgery,  and  midwifery,  that  he  was  unworthy  of 
public  confidence,  and  that  it  was  clearly  apparent  to  them  that  if  a  li- 
cense 'was  granted  it  would  be  their  duty  to  revoke  such. license  im- 
mediately for  the  reasons  stated. 

The  referee  finds  that  the  petitioner  graduated  from  the  Eclectic 
Medical  College  of  New  York  City,  a  medical  school  authorized  by  the 
laws  of  New  York  to  confer  degrees  in  medicine  and  surgery ;  that 
he  received  a  diploma  from  the  college,  March  4,  1880,  after  having 
pursued  the  prescribed!  course  of  study  and  upon  due  examination ; 
that  he  applied  to  the  defendants  January  4,  1883,  for  a  license,  and 
offered  his  diploma  as  evidence  of  his  graduation ;  that  the  defendants 
refused  to  grant  the  petitioner  a  license,  or  to  examine  his  diploma, 
or  to  examine  him  as  to  his  qualifications ;  and  that  they  put  their  re- 
fusal mainly  upon  the  ground  that  the  petitioner  is  not  worthy  of  pub- 
lic confidence. 

The  statute  requires  every  medical  society,  organized!  under  the 
laws  of  this  state,  to  elect  a  board  of  censors  consisting  of  three  mem- 
bers. Authority  is  conferred  upon  the  board  to  examine  and  license 
persons  to  practice  medicine,  surgery,  or  midwifery.  It  is  made  the 
duty  of  the  board  to  issue  licenses  without  examination  tO  all  persons 
who  furnish  evidence  by  diploma  from  some  medical  school  authorized 
to  confer  degrees  in  medicine  and  surgery,  when  the  board  is  satisfied 
that  the  person  presenting  such  diploma  has  obtained  it  after  pursuing 
some  prescribed  course  of  study  and  upon  due  examination.  The 
board  has  power,  upon  due  notice. and  hearing,  to  revoke  any  license 
granted  by  it,  when  improperly  obtained,  or  when  the  holder  has,  by 
conviction  for  crime  or  from  any  other  cause,  ceased  to  be  worthy  of 
public  confidence.  Gen.  Laws,  c.  132,  §  2.  The  defendants  allege  as 
a  reason  for  refusing  a  license  to  the  petitioner  that  he  is  not  "worthy 
of  public  confidence,"  and  claim  the  right  under  the  statute  to  refuse 
to  issue  a  license  if  satisfied  that  either  of  the  causes  exists  which  au- 
thorize them  to  revoke  it.  * 

The  object  of  the  statute  is  protection  to  the  public  from  incompe- 
tent and  unworthy  physicians  and  surgeons.  Two  classes  of  persons 
are  mentioned  in  the  statute  to  whom  a  license  to  practice  medicine, 
etc.,  may  be  issued — those  who  have  and  those  who  have  not  received 
a  diploma  from  a  medical  school  authorized  to  confer  degrees.  To 
the  latter  class  the  license  is  issued  upon  examination ;  to  the  former 
class,  without  examination.  Authority  to  examine  and  license,  as  ex- 
pressed in  the  statute,  means  authority  to  license,  when,  upon  ex- 
amination of  the  candidate  as  to  his  medical  education,  skill,  and  ex- 
perience, the  censors  are  satisfied  that  he  possesses  the  necessary  quali- 
fications for  the  important  and  responsible  occupation  of  a  medical 
practitioner.  When  the  candidate  has  received  a  diploma  from  a  med- 
ical school,  he  has  only  to  satisfy  the  board  that  it  was  conferred  by 
a  school  authorized  to  confer  degrees  in  medicine  and  surgery,  and 
that  it  was  conferred  after  he  had  pursued  the  prescribed  course  of 


Ch.  5)  HEARING   AND   EVIDENCE.  195 

study,  and  upon  due  examination  by  the  authorities  of  the  school.  The 
statute  makes  such  a  diploma  conclusive  evidence  to  the  censors  that 
he  possesses  the  requisite  medical  qualifications  to  practice  medicine, 
surgery,  and  midwifery.  Hence  the  provision  that  he  shall  receive  a 
license  without  examination ;  that  is,  without  examination  as  to  his 
medical  qualifications. 

The  statute  also  contemplates  that  the  exigency  may  arise  when  the 
holder  of  a  medical  license  may  become,  or  may  prove  to  have  been, 
unfit  or  unqualified  to  practice  medicine,  and  for  that  reason  that  his 
license  should  be  revoked.  The  license  is  in  effect  a  certificate  that  the 
holder  possesses  the  necessary  medical  and  other  qualifications.  The 
license  may  be  revoked  when  it  was  improperly  obtained,  or  when  the 
holder  has,  by  conviction  for  crime  or  from  any  other  cause,  ceased 
to  be  worthy  of  public  confidence.  Character,  no  less  than  medical 
education,  skill,  and  experience,  is,  within  the  meaning  of  the  statute, 
a  qualification  for  a  competent  physician  or  surgeon.  One  who  does 
not  possess  the,  requisite  qualifications  cannot  be  worthy  of  public  con- 
fidence. Barrows  v.  Mass.  Med.  Soc,  12  Cush.  (Mass.)  402,  409; 
Rex  V.  Dr.  Askew  et  al.,  Censors,  etc.,  4  Burr.  2186,  2189 ;  Com.  v. 
Philanthropic  Soc,  5  Binn.  (Pa.)  486.  But  a  license  once  granted 
cannot  be  revoked  except  upon  due  notice  and  a  hearing.  The  holder 
is  given  an  opportunity  to  meet  charges  and  evidence  tending  to  show 
his  unfitness.  The  same  considerations  that  forbid  the  revocation  of 
a  license,  except  upon  notice  and  a  hearing,  also  require  that  the  ap- 
plicant for  a  license  who  possesses  the  requisite  medical  qualifications 
shall  not  be  denied  a  license  without  a  hearing  on  the  question  whether 
he  is  in  other  respects  worthy  of  public  confidence. 

It  is  said  that  mandamus  does  not  lie  to  compel  admission  to  a  cor- 
porate franchise,  or  to  an  office,  when  it  is  plainly  apparent  that  the 
applicant,  if  admitted,  will  be  immediately  expelled ;  that  in  such  a 
case  the  writ  may  be  properly  withheld ;  and  that  the  writ  is  not  in- 
tended to  enable  a  party,  by  taking  advantage  of  forms  or  the  want 
of  form,  to  defeat  justice.  High,  Ex.  Rem.  §§  287,  301;  Ex  parte 
Paine,  1  Hill  (N.  Y.)  665;  Rex  v.  Griffiths,  5  B.  &  Aid.  731;  Rex 
v.  Axbridge,  Cowp.  523 ;  Rex  v.  Mayor,  etc.,  of  London,  2  T.  R.  177, 
182 ;  Rex  v.  Bishop  of  Chester,  1  T.  R.  396,  403 ;  Van  Rensselaer  v. 
Sheriff  of  Albany,  1  Cow.  (N.  Y.)  501;  State  v.  Society,  15  La.  Ann. 
73.  What  the  common  law  of  this  state  is  on  that  subject  it  is  not 
now  necessary  to  inquire.  This  case  depends  upon  the  statute,  which 
does  not  authorize  the  exclusion  of  the  plaintiff  from  the  rights  of  a 
licensed  physician  without  trial. 

An  examination  for  the  purpose  of  ascertaining  his  medical  and 
surgical  knowledge  and  skill  is  rendered  unnecessary  by  his  diploma 
from  a  medical  school  authorized  to  confer  degrees  in  medicine  and 
surgery,  the  board  of  censors  being  satisfied  that  he  obtained  his 
diploma  after  pursuing  the  prescribed  course  of  study  and  upon  due 
examination.     He  is  exempted  by  the  statute  from  the  examination 


196  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

which  would  be  required  if  he  had  no  diploma.  But  the  legal  mean- 
ing of  the  statute  does  not  require  the  issue  of  a  license  which  should 
be  immediately  revoked  for  want  of  other  qualifications  than  medical 
and  surgical  knowledge  and  skill.  A  license  may  be  refused,  if,  on 
other  grounds,  upon  due  notice  and  hearing,  he  is  fairly  proved  by 
the  defendants  to  be  unworthy  of  public  confidence.  If  he  desires  a 
hearing  before  the  defendants  on  that  question,  further  proceedings 
in  this  case  will  await  the  result  of  the  speedy  trial  to  which  he  is  en- 
titled before  the  board. 

Trial  granted.    All  concurred.^ 


UNITED  STATES  ex  rel.  ROOP  v.  DOUGLASS. 
(Supreme  Court  of  District  of  Columbia,  1890.     19  D.  C.  99.) 

Hearing  in  the  first  instance  in  General  Term,  on  a  return  to  a  pe- 
tition for  mandamus  to  the  Commissioners  of  the  District  of  Columbia 
commanding  them  to  issue  or  cause  to  be  issued  to  the  relators  a  re- 
tail liquor  license.    Writ  refused. 

James,  J.*  *  *  *  It  was  next  objected  that,  notwithstanding  a 
decision  by  one  having  discretionary  power  is  conclusive  when  it  is 
the  consequence  of  a  proper  examination,  it  is  not  so  when  the  ex- 
amination appears  to  have  been  improperly  conducted,  and  that,  as  a 
matter  of  fact,  the  examination  in  this  case  was  not  conducted  proper- 
ly or  lawfully. 

It  appears  by  the  return  that  the  respondents  received,  as  aids  in 
forming  their  judgment,  the  unsworn  reports  of  the  police  officers, 
and  by  the  uncontradicted  averments  of  the  petition  that  they  denied 
the  petitioners  a  rehearing  as  to  the  truth  of  these  reports.  The  meth- 
ods of  the  respondents  are  impeached  on  the  ground,  apparently,  that 
they  were  arbitrary  in  excluding  a  formal  contest.  To  what  methods, 
then,  were  the  Commissioners  limited?  The  interests  and  wants  of 
the  public,  and  not  any  pre-existing  right  of  the  petitioners,  were  the 
subjects  which  they  were  charged  to  ascertain,  when  application  was 
made  for  license.  Therefore,  their  mode  of  inquiry,  and  of  satisfy- 
ing their  own  judgments,  wa§  not  subject  to  the  rules  which  apply  to 
the  ascertainment  of  disputed  private  rights. 

As  no  mode  of  inquiry  is  prescribed  by  the  statute,  the  Commission-, 
ers  are,  by  implication,  authorized  to  adopt  any  that  may  reasonably' 
be  used  in  attaining  the  end  in  view.    They  were  the  head  of  a  police 

3  See  Queen  v.  Justices  of  Walsall.  .3  Common-Law  R.  100  (lSr.4) ;  E.v 
parte  Kavanagh,  10  Times  L.  Rep.  i333  (1894)  ;  In  re  Scliomaker,  15  Misc. 
Rep.  648,  .38  N.  Y.  Supp.  1G7  (181>5),  hearing  a  matter  of  custom  and  courtesy. 

Right  of  remonstrants  to  be  heard.  Steinkraus  v.  Ilurlbert,  20  Neb.  519, 
30  N.  W.  940   (1886). 

*  Only  a  portion  of  the  opinion  is  printed. 


Ch.  5)  HEARING   AND    EVIDENCE.  197 

force,  which  it  was  their  duty  to  employ  in  watching  over  good  order 
and  preventing  crime.  The  facts  which  might  determine  their  ap- 
proval or  disapproval  of  a  license,  such  as  the  assembling  of  disorderly 
persons,  were  the  very  matters  which  it  was  the  duty  of  their  sub- 
ordinate officers  to  observe.  It  was  not  only  reasonable,  then,  that 
they  should  derive  information  from  that  source,  in  aid  of  their  ex- 
ecutive discretion,  but  it  may  even  be  said  to  be  an  intendment  of  law, 
in  every  system  of  executive  discretion,  that  the  executive  head  may 
act  upon  mere  information  derived  from  his  accountable  subordinates. 

This  difference  between  an  inquiry  into  disputed  private  rights  and 
an  inquiry  intended  simply  to  ascertain  the  interests  of  the  public  was 
considered  and  w-ell  stated  in  Raudenbusch's  Appeal,  120  Pa.  342,  1-t 
Atl.  150.  Air.  Justice  Paxson,  speaking  for  the  court,  there  said  : 
"The  law^  of  the  land  has  decided  that  licenses  shall  be  granted  to  some 
extent,  and  has  imposed  the  duty  upon  the  court  [of  sessions]  of  as- 
certaining the  instances  in  which  the  license  shall  be  granted.  In  order 
to  perform  this  duty  properly,  the  act  of  assembly  has  provided  means 
by  which  the  conscience  of  the  court  may  be  informed  as  to  the  facts. 
It  may  hear  petitions,  or  remonstrances,  or  witnesses;  and  we  have 
no  doubt  the  court  may  in  some  instances  act  upon  its  own  knowledge. 
The  mere  appearance  of  an  applicant  for  license,  when  he  comes  to 
the  bar  of  the  court,  may  be  sufficient  to  satisfy  the  judge  that  he  is 
not  a  fit  person  to  keep  a  public  house.  The  judge  is  not  bound  to 
grant  a  license  to  a  man  whom  he  knows  to  be  a  drunkard  or  thief, 
or  has  actual  knowledge  that  his  house  is  not  necessary  for  the  public 
accommodation.  The  object  of  evidence  in  such  cases  is  to  inform 
the  conscience  of  the  court,  so  that  it  can  act  intelligently  and  justly 
in  the  performance  of  a  public  duty.  Whilst  the  act  of  deciding  in 
such  cases  is  quasi  judicial,  the  dift'erence  between  the  granting  and 
withholding  of  a  license  and  the  decision  of  a  question  between  par- 
ties to  a  private  litigation  is  manifest.  Neither  the  petitioner  nor  any 
other  person  in  this  state  has  any  property  in  the  right  to  sell  liquor." 

The  same  kind  of  objection  as  in  this  case  was  made  in  King  v. 
Bishop  of  London,  15  East,  117,  where  the  respondent  had  refused  to 
license  a  lecturer.  Lord  Ellenborough  there  said :  "It  has  been  urged, 
however  (and  much  stress  was  laid  upon  it  at  the  argument),  that  it 
was  the  duty  of  the  bishop  to  have  instituted  his  inquiry  upon  the  sub- 
ject, in  the  manner  and  by  the  means  usually  adopted  in  courts  of 
law ;  that  is,  by  the  formal  production  of  the  charges  made  against 
the  applicant  in  a  judicial  course,  and  by  a  public  and  solemn  hearing 
of  the  several  parties,  their  proofs  and  w^itnesses.  But,  in  the  first 
place,  what  power  has  the  bishop  to  compel  the  attendance  of  parties 
and  witnesses  ?  What  power  has  he  to  administer  an  oath,  or  what 
word  is  there  in  the  act  of  Parliament  that  prescribes  the  mode  bv 
which  he  shall  attain  a  conscientious  satisfaction  on  the  subject?  It 
only  requires  him  first  to  approve,  that  is  before  he  licenses ;  and  in 
so  doing  it  virtually  requires  him  to  exercise  his  conscience,  duly  in- 


198  ADMINISTUATIVE   TOWER   AXD   ACTION.  (Part    1 

formed,  upon  the  subject,  to  do  which  he  must  duly,  impartially,  and 
effectually  inquire,  examine,  deliberate,  and  decide." 

The  principle  recognized  in  both  of  the  cases  referred  to  is  that, 
inasmuch  as  the  object  of  evidence  in  such  examinations  is  merely  to 
inform  the  conscience  and  judgment  of  the  officer,  such  evidence  may 
be  taken  in  any  way  that  is  reasonably  sufficient  for  that  purpose.  The 
officer  is  not  governed  by  the  rules  of  litigious  evidence,  and  his  de- 
cisions are  not  to  be  deemed  arbitrary  merely  because  they  are  founded 
upon  information  which  a  court  would  hold  not  to  be  evidence  at  all. 

We  not  only  adhere,  then,  to  the  opinion  expressed  in  Manion's 
Case,  6  Mackey,  409,  that  the  Commissioners  have  full  discretion  in 
the  matter  of  retail  liquor  licenses,  but  we  hold  that  they  may  conduct 
their  inquiries  by  what  may  be  called  executive  methods.     *     *     *  5 


LILLIENFELD  v.  COMMONWEALTH. 

(Supreme  Court  of  Appeals  of  Virginia,  1896.     92  Va.  818,  23  S.  E.  SS2.) 

Appeal  from  corporation  court  of  Charlottesville. 

Proceedings  by  the  Commonwealth  against  T.  J.  Lillienfeld  to  re- 
voke defendant's  liquor  license.  From  a  judgment  revoking  the  li- 
cense, defendant  appeals.     Affirmed. 

RiELY,  J.®  *  *  *  The  proceeding  to  revoke  the  license  of  the 
plaintiff  in  error  to  sell  liquor  was  taken  by  the  court  of  its  own  mo- 
tion, under  section  560  of  the  Code,  which  is  as  follow.s :  "Upon 
the  motion  of  the  attorney  for  the  commonwealth  for  the  county  or 
city,  or  of  any  other  person,  after  ten  days'  notice  to  any  person  or  firm 
licensed  to  sell  liquors  or  any  other  thing,  the  granting  of  whose  li- 
cense was  based  upon  the  certificate  of  a  court,  the  court  which  granted 
the  certificate  may  revoke  the  license;"  and  the  order  of  the  court 
initiating  the  proceeding  was  in  the  following  words :  "It  is  ordered 
by  the  court  that  a  notice  be  issued  against  F.  J.  Lillienfeld  to  show 
cause,  if  any  he  can,  why  the  bar-room  and  retail-liquor  license  under 
which  he  is  doing  business  should  not  be  revoked  for  selling  and  caus- 
ing to  be  sold  to  minors  whisky,  wine,  and  beer."  Upon  the  hearing 
of  the  matter,  Lillienfeld,  by  his  counsel,  moved  the  court  to  quash 
the  notice  upon  the  ground  that  it  was  not  sufficiently  specific,  which 
motion  the  court  overruled ;  and  this  constitutes  the  first  assignment 
of  error. 

The  order  of  the  court,  which  v/as  duly  served  upon  the  defendant, 
set  forth  plainly  the  ground  of  the  proceeding — the  sale  of  liquor  to 
minors.  It  apprised  him  of  the  charge  against  his  conduct  of  the 
business  under  his  license.     The  statute  does  not  provide,  in  terms, 

6  Compare  Queen  v.  Licensing  Justices,  14  Q.  B.  D.  584  (1885);  Reg.  v. 
i;artlett,  49  Justice  of  Peace,  7(2   (1885). 

6  Only  a  portion  of  the  opinion  by  Riely,  J.,  is  printed. 


Cll.  5)  HEARING   AND    EVIDENCE.  199 

that  the  ground  upon  which  the  revocation  of  the  license  is  or  will 

be  asked  shall  be  set  forth  in  the  notice  or  otherwise.  It  is  sufficient 
i  to  state  the  charge  or  charges  in  general  terms,  if  stated  with  sufficient 

certainty  to  enable  the  person  or  firm  whose  license  it  is  sought  to 

revoke  to  understand  the  ground  upon  which  the  revocation  will  be 
,  asked.  This  was  done  in  this  case.  The  proceeding  is  a  summary 
1  one;  and,  as  was  said  by  Judge  Lewis  in  Cherry  v.  Com.,  78  Va.  375, 

378,  "it  was  manifestly  not  the  intention  of  the  Legislature  to  re- 
i  quire  in  such  proceedings  the  application  of  the  strict  and  technical 
I  rules  which  apply  to  indictments  and  other  forms  of  accusation  in 

criminal  prosecutions."  There  is  no  substantial  difference  between 
j  the  notice  given  in  this  case  and  the  notice  given  in  the  case  of  Cherry 

V.  Com.,  supra,  or  in  the  case  of  Davis  v.  Com.,  75  Va.  944,  in  both 

of  which  cases  the  notice  was  held  to  be  sufficient. 
i      It  is  also  alleged  as  error  that  the  court  admitted  as  evidence,  over 
;  the  objection  of  the  defendant,  19  indictments  which  had  been  found 

against  him  by  its  grand  jury  for  selling  liquor  to  minors  and  were 
,  then  pending  in  the  court  for  trial ;  and  also  in  receiving  the  testi- 
;  mony  of  Charles  Wilkins  that  he  had  purchased  intoxicating  liquors 
i  of  the  defendant  at  his  bar-room  within  the  preceding  12  months, 
I  but  prior  to  May  1,  1895,  when  his  license  took  effect.  In  this  there 
i  was  no   error.     In  a  proceeding  of   this   kind,  the  whole  matter   is 

heard  and  determined  by  the  court,  and  it  is  not  confined  to  the  strict 
\  rules  of  evidence  which  obtain  upon  the  trial  of  an  issue  before  a 
'  jury,  but  the  doors  of  evidence  are  and  should  be  thrown  open,  that 
I  the  court  may  be  satisfied  whether  or  not  it  has  intrusted  the  sale  of 
I  liquor  to  an  unfit  person,  and  the  privilege  of  the  license  been  abused 
j  or  the  law  violated.  The  relevancy  and  materiality  of  the  evidence, 
I  and  the  weight  to  be  given  to  it,  are  matters  for  the  consideration  of 
j  the  court,  when  it  comes  to  determine  the  case.  Even  in  certain 
I  criminal  prosecutions  involving  the  life .  or  liberty  of  the  accused, 
i  whenever  the  intent  or  guilty  knowledge  is  a  material  ingredient  in  the 
,  issue  of  the  case,  evidence  of  other  acts  of  the  accused  of  a  similar 
I  nature  tending  to  establish  such  intent  or  knowledge  is  admissible 
\  as  evidence,  if  not  too  far  removed ;  and  what  are  the  limits  as  to  the 
I  time  and  circumstances  is  for  the  court,  in  its  discretion,  to  determine. 
I  Trogdon's  Case,  31  Grat.  863. 

Upon  a  review  of  the  whole  evidence,  as  certified  by  the  court,  we 
I  are  of  opinion  that  the  discretion  of  the  court  was  properly  exer- 
i  cised  in  revoking  the  license  of  the  plaintiff  in  error.  When  the  li- 
;  cense  was  granted,  he,  along  with  the  other  applicants  for  liquor  li- 
;  cense,  was  notified  and  warned  by  the  court  that  if  he  sold  or  allowed 
j  liquor  to  be  unlawfully  sold  to  minors  his  license  would  be  revoked. 
I  The  evidence  discloses  that  liquor  was  sold  in  his  bar-room,  in  a  num- 
1  ber  of  instances,  and,  if  he  did  not  himself  sell  it,  he  did  not  exercise 
j  due  oversight  and  vigilance  to  see  that  it  was  not  done  by  his  bar 
:  tender.     It  further  appears  that,  even  after  the  large  batch  of  indict- 


200  ADMINISTRATIVE    POWER   AND   ACTION.  (Part    1 

ments  for  selling  liquor  to  minors  had  been  found  against  him,  he 
still  retained  as  his  bar  tender  the  man  who  is  proved  to  have  freely 
and  without  inquiry  sold  liquor  to  minors.  The  protection  of  minors 
against  the  terrible  evils  which  ensue  from  contracting  in  early  life 
the  habit  of  indulgence  in  strong  drink,  and  the  happiness  of  parents, 
as  well  as  the  good  of  society  in  general,  require  that  this  dangerous 
traffic  in  ardent  spirits  should  be  carefully  guarded,  and  not  placed  or 
suffered  to  remain  in  the  hands  of  men  who  will  disregard  the  law, 
or  allow  it  to  be  disregarded  by  their  employes,  or  knowingly  retain 
in  their  service  as  bar  tenders  persons  who  violate  the  law. 

Upon  a  consideration  of  the  whole  case,  the  court  is  of  opinion 
that  the  corporation  court  did  not  err  in  revoking  the  license  of  the 
plaintiff  in  error,  and  that  its  judgment  should  be  affirmed.^ 


DODD  et  al.  v.  FRANCISCO  et  al. 
(Supreme  Court  of  New  Jersey,  1902.     OS  N.  J.  Law,  490,  53  Atl.  219.) 

On  certiorari. 

Dixon,  J.  This  certiorari  brings  before  the  court  the  proceedings 
of  the  state  board  of  health  respecting  an  application  for  permission 
to  locate  a  cemetery  in  the  town  of  Bloomfield,  Essex  county.  The 
application  was  first  presented  on  December  24,  1900,  to  the  council 
of  the  town,  and  being  approved  by  that  body  was  then  presented  to 
the  local  board  of  health,  which  on  March  5,  1901,  refused  to  give  its 
consent.  Thereupon  the  applicants  appealed  to  the  state  board  of 
health,  and  on  June  28,  1901,  that  board  passed  a  resolution  by  which 
the  action  of  the  local  authorities  was  reversed  and  the  desired  per- 
mission was  granted.  This  resolution  was  set  aside  by  this  court 
at  the  term  of  February,  1902,  because  the  parties  interested  had 
not  been  heard  before  the  board  itself;  the  only  hearing  given  to 
them  having  been  had  before  a  committee  O'f  the  board. 

Afterwards,  on  April  23,  1902,  the  counsel  of  the  respective  par- 
ties were  notified  that  on  May  8,  1902,  at  2  o'clock  p.  m.,  in  the  state 
house,  the  state  board  of  health  would  meet  to  consider  the  applica- 
tion, and  at  that  time  and  place  counsel  representing  the  applicants 
and  the  opponents  appeared  and  were  fully  heard  by  the  board,  as 
were  also  all  individuals  who  desired  to  express  their  views.  The 
result  of  the  board's  deliberation  was  another  resolution,  passed  May 
22,  1902,.  to  the  same  effect  as  that  of  June  28,  1901,  which  resolu- 
tion is  now  before  us  for  review. 

7  See.  also.  Traer  v.  State  Board  of  Medical  Examiners.  10€  Iowa,  559.  76 
N.  W.  833  (1898).  But  see  People  ex  rel.  Silkens  v.  McGlyn,  02  Hun,  237, 
16  N.  Y.  Supp.  736  (1891),  no  proof  other  than  character  and  standing  of  com- 
plainants. 


Ch.  5)  HEARING  AND    EVIDEXCE.  201 

The  statute  under  which  these  proceedings  were  taken  is  the  sixth 
section  of  a  supplement  to  the  cemetery  act,  approved  March  25, 
1885.     Gen.  St.  p.  354.     *     *     * 

The  third,  fifth  and  sixth  reasons  assigned  for  annulhng  the  res- 
ohition  present  two  questions — First,  whether  the  board  was  bound 
to  examine  persons  under  oath  touching  the  matters  stated  and  con- 
troverted at  the  hearing  before  it;  and,  second,  whether  the  board 
had  a  right  to  consider  a  report  made  to  it  by  its  committee  while 
the  first  appeal  was  pending. 

In  the  opinion  delivered  by  Mr.  Justice  Garretson  in  the  case 
above  cited  it  is  said:  ''The  board  of  health  was  acting  judicially 
upon  the  application  before  it,  and  all  parties  were  entitled  to  be 
heard  by  the  board  in  a  legally  organized  meeting  of  the  board." 
This  expression  is  referred  to  by  counsel  for  the  prosecutors  as  in- 
dicating that  it  was  the  duty  of  the  board  to  examine  witnesses  as  to 
disputed  questions  of  fact.  But  we  do  not  so  understand  it.  Its 
import  is  merely  that  the  functions  of  the  board  were  such  as  re- 
quired the  exercise  of  the  judgment  of  the  board  itself,  and  hence  that 
parties  interested  had  a  right  to  present  and  discuss  before  the  board 
the  matters  on  which  its  judgment  should  rest.  Nor  do  we  find 
either  in  the  statute  relating  to  cemeteries  or  in  that  establishing 
the  state  board  of  health  (Gen.  St.  p.  1634),  any  indication  that  the 
board  was  to  proceed  as  courts  do  in  suits  inter  partes.  There  is 
nothing  suggestive  of  a  power  to  summon  witnesses,  to  administer 
oaths  or  to  compel  the  giving  of  evidence,  either  oral  or  written. 
Moreover,  the  matters  to  be  considered  by  the  board  respecting  the 
propriety  of  locating  a  new  cemetery  are  of  so  general  and  public 
a  nature  that  they  can  be  decided  more  intelligently  by  observation 
and  discussion  than  by  testimony.  In  this  respect  the  board  resembles 
boards  of  assessment,  whose  proceedings  involve  the  exercise  of 
judicial  functions  (Peckham  v.  Newark,  43  N.  J.  Law,  576),  but 
whose  judgment  is  to  be  founded  on  facts  obvious  to  their  senses  or 
ascertained  by  inquiry  and  examination,  who,' although  not  authorized 
to  call  witnesses  and  examine  them  upon  oath,  should,  as  do  surveyors 
and  freeholders  in  road  cases,  visit  the  premises  in  controversy  and 
avail  themselves  of  every  accessible  means  of  information  likely  to 
aid  them  in  reaching  a  proper  determination.  State  v.  Jersey  City, 
24  N.  J.  Law,  662,  665. 

We  therefore  conclude  that  the  board  was  not  bound  to  receive 
evidence  under  oath. 

What  has  been  already  said  indicates  also  that  in  our  judgment  it 
was  not  erroneous  for  the  board  to  consider  the  report  of  its  'former 
committee  regarding  the  matter  pending  before  the  board.  The 
report  was  a  means  of  information  accessible  not  only  to  those  who 
were  members  of  the  board  when  the  report  was  presented,  but  also 
to  new  members.  As  a  part  of  the  discussion  proper  in  the  delibera- 
tions of  such  bodies,  the  report  was  at  least  the  statement  of  persons 


202  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

who  had  made  special  investigation  and  presumably  formed  impar- 
tial judgments  on  the  matter  under  consideration.     *     *     *  » 
Resolution  granting  the  desired  permission  affirmed. 


SECTION  25.— IN  CONNECTION  WITH  REVENUE 


TOMLINSON  V.  BOARD  OF  EQUALIZATION. 

(Supreme  Ctourt  of  Tennessee,   1889.     88  Tenn.   1,   12   S.   W.   414,   G   L.  R. 

A.  207.) 

LuRTON,  J.9  *  *  *  'fhe  complaint  made  in  the  petition  is  that 
it  [the  board  of  equalization]  refused  to  hear  witnesses  offered  by  com- 
plainant in  support  of  his  complaint  as  to  an  excessive  assessment  as  to 
valuation.  In  this,  did  they  "exceed  their  jurisdiction,"  or  "act  illegal- 
ly"? To  determine  this,  we  must  not  only  consider  the  language  of  the 
act  defining  their  duties,  but  consider  the  general  nature  and  scope  of 
the  powers  conferred  upon  them.  They  are  styled  a  "board  of  equali- 
zation." They  are  charged,  primarily,  with  the  duty  of  "examining" 
and  "equalizing"  assessments.  This  duty  they  are  expected,  most 
manifestly,  to  perform,  not  upon  testimony,  but  upon  a  "comparing" 
the  assessments  in  one  district  or  neighborhood  with  another — one 
piece  of  property  with  the  assessment  upon  another  of  equal  value. 
Clearly,  this  is  to  be  done  upon  their  own  knowledge  of  the  compara- 
tive valuations,  and  the  end  to  be  reached  is  an  equalization  whereby 
discriminations  in  favor  of  one,  or  against  another,  are  to  be  corrected. 
In  addition  to  this,  they  are  to  correct  mistakes  made  by  the  assessor, 
and  eliminate  from  the  list  property  exempt  under  the  law  from  as- 
sessment. 

Finally,  they  are  empowered  to  hear  and  adjust  complaints  from 
any  party  feeling  aggrieved  on  account  of  excessive  taxation,  where 
in  their  judgment  justice  demands  it.  How  are  they  to  "hear  and 
adjust"  such  complaints?  Petitioner's  contention  is  that  they  must 
hear  witnesses  produced  by  him ;  that  he  has  a  right  to  examine  such 
witnesses,  and  cross-examine  such  as  are  produced  against  him.  In 
other  words,  that  the  act  contemplates  a  regular  trial,  according  to  the 
ordinary  course  of  law,  and  the  decision  according  to  the  weight 
of  the  proof.  We  have  seen  that,  with  reference  to  the  primary  duty 
of  the  board — that  of  equalizing  assessments — the  act  contemplates  no 

8  The  rest  of  the  opinion  is  omitted.    See  ante,  p.  7G. 

»  Only  a  portion  of  the  opinion  of  Lurton,  J.,  is  printed. 


Ch.  5)  HEARING   AND   EVIDKNCE.  203 

issue  of  fact  or  hearing  of  evidence,  but  that  the  equalization  is  to 
be  brought  about  by  a  comparison  of  assessments  and  the  knowledge 
they  have  of  the  relative  values  of  different  pieces  of  property.  Can 
the  law  contemplate  any  very  different  method  of  correcting  an  ex- 
cessive assessment?  The  knowledge  of  relative  values — of  compara- 
tive values — which  they  have  as  citizens  and  freeholders,  and  which 
they  obtain  from  an  examination  and  comparison  of  the  assessment 
lists,  will,  in  the  vast  majority  of  cases,  enable  them  to  act  justly 
upon  the  complaint.  But  cases  may  occur  where  these  means  are,  in 
their  judgment,  unsatisfactory.  In  such  case,  the  act  declares  that 
ihe  ''board  shall  have  the  right  to  summon  before  them  witnesses, 
who  shall  be  disinterested  freeholders;  and  the  sworn  testimony  of 
three  such  witnesses  concerning  same  will  be  sufficient  evidence  upon 
which  such  board  may  act."  The  "board  shall  have  the  right"  to 
summon  before  them  disinterested  freeholders  is  the  language  of 
the  act.  Does  this  power  conferred  make  it  their  duty  to  either  have 
witnesses  brought  by  the  party  making  complaint,  or  require  them 
in  all  cases  to  summon  witnesses  upon  such  complaint  being  made ; 
or  is  the  hearing  of  witnesses  a  matter  wholly  in  their  discretion  ?  We 
think  the  statute  means  no  more  than  it  plainly  discloses. 

To  hold  that  it  was  the  duty  to  permit  the  examination  of  witnesses 
offered  by  a  complainant  would  imply  a  duty  to  the  state  and  county 
to  hear  and  examine  witnesses  to  sustain  the  assessment.  All  this 
would  imply  a  trial,  and  a  judgment  upon  weight  of  proof.  The 
question  of  valuation  is  altogether  a  matter  of  opinion.  Before  ques- 
tions of  opinion  the  greatest  diversity  may  be  expected.  The  ses- 
sions of  this  board  terminate  in  two  weeks ;  and  at  the  end  of  that 
time  they  are  required  to  return  the  assessment  lists,  and  their  cor- 
rections, to  the  clerk  of  the  county  court.  In  populous  counties  the 
assessments  reach  into  the  thousands.  That  each  taxpayer  should 
have  the  right  to  come  with  his  witnesses,  and  have  them  heard,  and 
be  heard  by  counsel,  would  result  in  such  delay  and  embarrassment 
as  to  amount  to  a  great  public  peril  with  regard  to  the  assessment 
of  the  public  revenues.  No  legislative  body  could  have  seriously  con- 
templated such  a  tribunal  to  determine  a  mere  question  of  an  exces- 
sive valuation  for  purpose  of  assessment.  Occasional  instances  of 
excessive  assessments  may  occur;  but  they  had  better  be  borne  than 
that  such  a  court  should  be  created  to  settle  them.  The  taxpayer  in 
the  first  instance  may  make  his  representations  to  the  assessor.  If 
he  overassess  him,  he  may  carry  the  matter  to  a  board  of  disinterested 
freeholders,  acting  under  oath.  If  they  upon  their  own  knowledge, 
agree  with  the  assessor,  and,  upon  a  "comparison,"  find  no  case  for 
a  reduction  of  or  purpose  of  equalization,  the  chances  are  that  the  as- 
sessment is  not  far  wrong.  If  he  cannot  induce  the  board  to  think 
that  it  is  a  case  where  they  ought,  for  their  own  enlightenment,  exer- 
cise the  power  they  have  to  summon  witnesses  of  their  own  selection, 
he  must  submit. 


204  ADMINISTRATIVE   POWKll   AND   ACTION.  (Part    1 

The  board  was  not  "exceeding  its  jurisdiction,"  or  "acting  illegally," 
in  refusing  to  have  the  witnesses  offered  by  petitioner;  and  it  had  a 
right  to  refuse  to  summon  witnesses  of  its  own  selection,  if  it  deemed 
that  justice  did  not  demand  evidence  from  witnesses.     *     *     *  lo 


AUFFMORDT  v.  HEDDEN. 

(Supreme  Court  of  United  States,  1800.     137  U.  S.  310,  11  Sup.  Ct.  103, 
34  L.   Ed.   074.) 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York. 

Action  to  recover  an  alleged  excess  of  duties,  paid  under  protest. 

Blatchford,  J.^^  "^  '■''  *  Section  2930  of  the  Revised  Stat- 
utes, under  which  the  principal  question  in  the  case  arose,  was  as  fol- 
lows: "If  the  importer,  owner,  agent,  or  consignee  of  any  mer- 
chandise shall  be  dissatisfied  with  the  appraisement,  and  shall  have 
complied  with  the  foregoing  requisitions,  he  may  forthwith  give 
notice  to  the  collector,  in  writing,  of  such  dissatisfaction,  on  the 
receipt  of  which  the  collector  shall  select  one  discreet  and  expe- 
rienced merchant  to  be  associated  with  one  of  the  general  apprais- 
ers wherever  practicable,  or  two  discreet  and  experienced  mer- 
chants, citizens  of  the  United  States,  familiar  with  the  character 
and  value  of  the  goods  in  question,  to  examine  and  appraise  the  same, 

10  Compare  Ekiii  v.  United  States,  142  U.  S.  G51,  663,  12  Sup.  Ct.  336,  35 
L.  Ed.  1146   (1892). 

Under  statutory  provisions,  assessing  board  may  be  required  to  liear  wit- 
nesses. People  ex  rel.  Bronx  Gas  &  p]lectric^  Co.  v.  Feitner,  43  App.  Div.  198. 
59  N.  Y.  Supp.  327  (1899) ;  People  ex  lel.  Manhattan  Co.  v.  Barlver,  152  N.  Y. 
417,  46  N.  E.  875   (1897). 

As  to  the  former  practice  of  accepting  the  tax-payer's  oath  as  conclusive 
upon  the  amount  of  his  assessment,  see  People  ex  rel.  Buffalo,  etc.,  Co.  v. 
Barker,  48  N.  Y.  70,  74-77;  Inhabitants  of  Newburyport  v.  County  Commis- 
sioners, 12  Mete.  (Mass.)  211. 

The  same  practice  is  commonly  followed  with  regard  to  the  qualifications  of 
electors,  so  far  as  the  action  of  election  or  registration  officers  is  concerned. 

"Practically,  the  law  leaves  it  to  the  conscience  of  the  person  offering  to 
vote  to  decide  whether  he  can  or  will  do  so  when  his  right  is  challenged. 
The  inspectors  cannot  do  more  than  to  make  use  of  the  machinery  provided 
by  the  law  to  test  the  voter's  legal  qualifications,  and  they  cannot  decide  up- 
on the  truth  or  falsity  of  the  answers  to  their  questions.  The  law  provides 
for  the  punishment  of  a  person  who  falsely  personates  a  registered  voter; 
and  the  proposed  elector,  who  is  challenged  for  that  cause,  if  he  persists  in 
his  attempt  to  vote,  may  accomplish  his  purpose,  but  at  the  peril  consequent 
upon  false  swearing  and  of  false  personation.  If.  with  all  the  safeguards 
with  which  popular  elections  ai'e  legally  and  naturally  surroiuided,  frauds 
are  perpetrated,  the  tribunals  are  open,  and  laws  and  a  system  of  procedure 
exist  for  the  punishment  of  the  offenders,  and  for  the  rectification  of  conse- 
quent errors,  in  behalf  of  an  individual  whose  legal  rights  are  affected;  and 
legislative  bodies  are  judges  as  to  the  qualifications,  returns,  and  elections 
of  their  members."  People  ex  rel.  Stapleton  v.  Bell,  119  N.  Y.  175,  23  N.  E. 
533   (1890);    Gillespie  v.  Palmer,  20  Wis.  .544   (1866),  post,  p.  302. 

11  Only  a  portion  of  the  opinion  of  Blatchford,  J.,  is  printed. 


Cll.  5)  HEARING   AND    EVIDENCE.  205 

agreeably  to  the  foregoing-  provisions,  and,  if  they  shall  disagree,  the 
collector  shall  decide  between  them ;  and  the  appraisement  thus  de- 
termined shall  be  final,  and  be  deemed  to  be  the  true  value,  and  the 
duties  shall  be  levied  thereon  accordingly."  [At  the  trial,  the  plain- 
tiffs put  in  evidence  a  number  of  regulations  of  the  Treasury  Depart- 
ment, among  them  the  following :  "Act.  474.  Merchants'  appraise- 
ments should  not  assume  the  nature  of  a  judicial  inquiry  where  judg- 
nient  is  rendered  in  accordance  with  the  preponderance  of  testimony 
on  either  side,  but  should  be  conducted  as  an  investigation  of  experts, 
to  ascertain  whether  the  local  appraiser  has  reported  the  true  and 
proper  market  value  of  the  merchandise  in  question."]      *     ='-     * 

They  also  offered  in  evidence  sundry  depositions  of  witnesses  taken 
before  the  reappraisers  in  this  case,  in  regard  to  market  value,  but 
they  were  excluded  by  the  court  on  the  objection  of  the  defendant, 
and  the  plaintiffs  excepted.  They  also  offered  to  show  by  a  witness  the 
true  and  actual  market  value  and  wholesale  price  of  the  goods  in  ques- 
tion, and  of  goods  identical  with  them,  in  the  principal  markets  of  the 
country  from  which  they  were  exported,  at  the  time  of  their  exporta- 
tion, in  Alarch,  1886 ;  but,  on  the  objection  of  the  defendant  that  the 
testimony  was  immaterial,  incompetent,  and  irrelevant,  it  was  ex- 
cluded, and  the  plaintiffs  excepted.  '''  *  *  They  also  requested 
the  court  to  submit  all  of  the  evidence  to  the  jury  touching  the  value 
upon  which  the  duty  was  assessed,  and  the  value  declared  on  en- 
try, on  the  ground  that  section  2930  of  the  Revised  Statutes  was 
unconstitutional ;  that  the  plaintiffs  had  the  right  to  have  submit- 
ted to  the  jury,  under  proper  instructions,  on  the  evidence,  all 
questions  touching  the  imposition  of  duty;  and  that,  by  withholding 
the  evidence  'from  the  jury,  by  virtue  of  an  unconstitutional  statute 
which  declared  the  conclusions  of  the  reappraisers  to  be  final,  the 
plaintiffs  were  deprived  of  their  constitutional  right  to  a  trial  by  jury, 
in  a  case  where,  by  the  common  law,  it  obtained,  under  article  7  of 
the  amendments  of  the  Constitution.  This  request  was  denied,  and 
the  plaintiffs  excepted. 

It  is  provided,  by  section  2903  of  the  Revised  Statutes,  that  it  shall 
be  the  duty  of  the  appraisers  of  the  United  States,  "and  every  person 
who  shall  act  as  such  appraiser,"  "by  all  reasonable  ways  and  means  in 
his  or  their  power,  to  ascertain,  estimate,  and  appraise  the  true  and 
actual  market  value  and  wholesale  price"  of  the  merchandise  under 
appraisal,  "at  the  time  of  exportation,  and  in  the  principal  markets  of 
the  country  whence  the  same  has  been  imported  into  the  United 
States";  and,  by  section  2930,  it  is  made  the  duty  of  the  general 
appraiser  and  the  merchant  appraiser  to  examine  and  appraise  the 
goods  "agreeably  to  the  foregoing  provisions."     *     *     * 

The  views  of  the  Circuit  Court  in  regard  to  this  case,  as  stated  at 
the  trial,  are  set  forth  in  the  report  of  it  in  30  Fed.  360,  and  are  con- 
tained also  in  the  record.  Mr.  Robinson,  the  agent  of  the  plaintiff's, 
employed  to  attend  to  their  custom-house  business,  and  who  acted  in 


206  ADMINISTRATIVE   TOWER   AND   ACTION.  (Part    1 

the  present  case,  gave  his  testimony  as  to  what  took  place  in  regard 
to  the  reappraisement,  so  far  as  he  was  cognizant  of  it.  The  court 
commented  on  his  testimony  and  that  of  other  witnesses,  and  said : 
"I  do  not  gather  from  the  testimony,  as  given  here,  that  the  plaintiffs 
or  their  agent  understood  that  they  were  in  any  way  excluded  from 
their  goods,  which  were  in  the  adjoining  room.  I  understand  him  to 
say  that  when  his  appraisal  was  going  on  he  was  at  perfect  liberty  to 
be  in  the  room  where  the  goods  were,  and  point  them  out  to  the  ap- 
praisers, but  not  to  the  witnesses.  I  understand  him  that  there  was 
a  notice  on  the  door  that  led  into  that  room  that  nobody  would  be 
allowed  in  there  when  the  witnesses  were  examining  the  goods. 
When  this  case  was  up  and  the  merchant  appraiser  and  the  general 
appraiser  were  there,  if  he  had  wanted  to,  he  could  have  gone  into 
the  room,  and  pointed  out  any  of  the  goods  he  had  a  mind  to.  He 
was  asked  to  make  his  statement,  and  understood  that  he  had  the 
right.  He  didn't  question  but  that  the  samples  they  had  were  the 
right  ones.  He  stayed  there  as  long  as  he  wanted  to,  to  do  anything 
about  pointing  out  his  goods.  I  think  the  importer  was  entitled  to 
that — to  be  there  when  the  appraisal  was  made;  to  point  out  his 
goods ;  to  know  they  were  his  goods ;  to  illustrate  them,  and  exhibit 
them  in  any  manner  he  saw  fit;  and  to  present  to  the  appraisers  any 
views  he  had.  I  think  he  had  that  right ;  but  I  am  not  able  to  say 
from  this  evidence  that  there  was  anything  tending  to  show  that 
he  was  denied  that  right.  There  is  one  other  point  upon  which  I  am 
not  clear ;  that  is  when  this  board  takes  testimony  (and,  whether 
they  will  take  it  all  or  not,  they  are  to  decide  themselves),  whether 
they  are  bound  to  let  the  importer  know  that  they  are  taking  it;  or, 
if  they  do  let  the  importer  know  they  have  taken  it,  whether  they 
are  bound  to  let  him  know  what  it  is,  so  he  may  answer  it.  But  m}' 
impression  is  that  that  is  discretionary  with  the  board;  that  the\' 
may  make  inquiry  by  what  they  deem  to  be  proper  ways  and  means ; 
and  that  the  importer  must  rely  on  their  fairness  and  judgment  as  to 
what  testimony  they  do  take,  and  the  weight  they  give  to  it ;  that  the 
fact  that  the  importer  was  not  informed  who  the  witnesses  were,  and 
what  they  testified  to,  and  given  an  opportunity  to  cross-examine  them, 
and  an  opportunity  to  meet  it,  does  not  constitute  a  valid  objection 
against  the  reappraisement." 

The  contention  of  the  plaintiffs  is  that  under  the  instructions  O'f 
the  treasury  department,  and  the  evidence,  the  question  in  issue  as- 
to  the  dutiable  value  of  the  merchandise  could  not  be  reasonably 
heard  at  all,  on  the  reappraisement,  because  (1)  the  importer  or  his 
agent  was  practically  excluded  from  the  reappraisement;  (2)  was  not 
afforded  opportunity  to  support  his  oath  on  entry,  or  within  proper 
limits  to  confront  the  opposing  witnesses  by  testimony  in  his  own 
behalf;  (3)  or  to  sift  evidence  secretly  or  openly  heard  in  opposition 
to  him;  (4)  or  to  have  the  aid  of  counsel,  if  he  desired;  and,  particu- 
larly, that  the  rule  of  "reasonable  ways  and  means"  could  not  exist  in  a 


Ch.  5)  HEARING  AND   EVIDENCE.  207 

tribunal  which  proceeded  to  examine  an  issuable  matter  under  a  rule 
which  excluded  lawyers. 

We  are  of  opinion  that,  under  the  statute,  the  question  of  the  duti- 
able value  of  the  merchandise  is  not  to  be  tried  before  the  appraisers 
as  if  it  were  an  issue  in  a  suit  in  a  judicial  tribunal.  Such  is  not  the 
intention  of  the  statute,  and  the  practice  has  been  to  the  contrary  from 
the  earliest  history  of  the  government.  No  government  could  collect 
its  revenues  or  perform  its  necessary  functions,  if  the  system  con- 
tended for  by  the  plaintiffs  were  to  prevail.  The  regulations  pre- 
scribed in  the  instructions  from  the  Treasury  Department  are  reason- 
able and  proper.  By  section  2949  of  the  Revised  Statutes  (U.  S. 
(Comp.  St.  1901,  p.  1940)  the  Secretary  of  the  Treasury  has  power  to 
establish  "rules  and  regulations  not  inconsistent  with  the  laws  of  the 
United  States,  to  secure  a  just,  faithful,  and  impartial  appraisement 
of  all  merchandise  imported  into  the  United  States";  and  by  section 
2652  (page  1821)  it  is  made  "the  duty  of  all  officers  of  the  customs  to 
execute  and  carry  into  effect  all  instructions  of  the  Secretary  of  the 
Treasury  relative  to  the  execution  of  the  revenue  laws;  and,  in  case 
any  difficulty  shall  arise  as  to  the  true  construction  or  meaning  of 
any  part  o'f  the  revenue  laws,  the  decision  of  the  Secretary  of  the 
Treasury"  is  made  conclusive  and  binding.  The  proceedings  for  ap- 
praisal must  necessarily  be  to  some  extent  of  a  summary  char- 
acter.    *     *     * 

Although  by  section  29  of  the  act  of  June  10,  1890,  c.  407,  entitled 
"An  act  to  simplify  the  laws  in  relation  to  the  collection  of  the  rev- 
enues," sections  2902  and  2930  of  the  Revised  Statutes  are  expressly 
repealed,  section  10  of  that  act  provides  that  it  shall  be  the  duty  of 
the  appraisers  of  the  United  States,  "by  all  reasonable  ways  and 
means,"  to  appraise  the  actual  market  value  and  wholesale  price  of  im- 
ported goods  in  the  principal  markets  of  the  country  whence  the  same 
have  been  imported ;  and  section  13  of  that  act  provides  that  the  deci- 
sion of  the  appraiser  or  that  of  the  general  appraiser  in  cases  of  reap- 
praisement,  or  that  of  the  board  of  general  appraisers  on  review,  shall 
be  final  and  conclusive  as  to  the  dutiable  value  of  the  merchandise, 
against  all  parties  interested  therein.  There  is  nothing  in  the  in- 
structions of  the  Secretary  of  the  Treasury,  or  in  any  of  the  regula- 
tions prescribed,  or  in  the  evidence  in  this  case,  which  shows  that 
the  appraisers  were  not  free  to  perform  their  duties  properly,  as  re- 
quired by  the  statute.  The  reappraisers  appraised  the  goods  in  the 
appraisers'  room  in  the  public  store.  On  the  day  before  the  reap- 
praisement  took  place,  the  agent  of  the  plaintiffs  received  due  notice 
of  it,  and  he  attended  and  was  called  by  the  reappraisers  before  them. 
The  merchant  appraiser  had  then  and  there  samples  of  the  plaintiffs' 
goods,  and  the  general  appraiser  asked  the  agent  for  his  statement  in 
the  case,  and  it  was  made.  The  samples  were  on  the  table  before 
the  merchant  appraiser,  and  the  cases  of  goods  were  in  the  adjoining 
room.     The  agent  made  no  objection  as  to  the  proceedings,  and  tes- 


208  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

tifies  that  he  was  allowed  to  make  a  full  statement  concerning  the 
value  of  the  plaintiffs'  goods;  and  the  evidence  fails  to  show  that 
any  request  was  made  on  behalf  of  the  plaintiffs  which  was  refused, 
except  the  request  to  find  the  value  which  the  plaintiffs  desired  to  be 
found.     *     *     *  ^" 


ORIGET  V.  HEDDEN. 

(Supreme  Court  of  United  States,  1894.     155  U.  S.  228,  15  Sup.   Ct.  92,  39 
L.  Ed.  130.) 

Fuller,  C.  J.^=^  *  *  *  3.  The  contention  that  the  importer  has 
the  right  to  be  present  throughout  the  proceedings  on  the  reappraise- 
ment,  hear  or  examine  all  the  testimony,  and  cross-examine  the  wit- 
nesses, which  was  passed  on  in  Auffmordt  v.  Hedden,  137  U.  S.  310, 
11  Sup.  Ct.  103,  34  L.  Ed.  674,  is  renewed  in  this  case. 

The  importer  appeared  at  the  opening  of  the  reappraisal,  and  made 
application  that  he  or  his  associate  or  his  counsel  might  examine 
the  various  affidavits  made  by  experts,  importers,  merchants,  and 
others,  be  present  at  the  taking  of  any  testimony,  and  cross-examine 
all  witnesses  produced,  or  suggest  questions  to  the  general  appraiser. 
The  appraisers  ruled  that  they  could  not  accede  to  this  request,  but 
expressed  their  desire  to  hear  the  importers  in  regard  to  their  reap- 
praisements,  and  their  assurance  of  appreciation  of  any  suggestions 
the  importers  might  make  as  to  asking  questions  of  the  witnesses. 
The  presumption  in  favor  of  official  action  sustains  this  ruling  as  being 
in  accordance  with  the  rules  and  regulations  established  by  the  Sec- 
retary of  the  Treasury,  under  section  2949  of  the  Revised  Statutes 
(U.  S.  Comp.  St.  1901,  p.  1940),  to  secure  a  just,  faithful,  and  im- 
partial appraisal  of  all  merchandise  imported  into  the  United  States, 
and  just  and  proper  entries  of  the  actual  market  value  or  wholesale 
price  thereof;  and  this  was  indeed  the  fact,  as  appears  by  refer- 
ence to  the  general  regulations  of  1884,  and  instructions  of  June  9, 
1885,  given  at  length  in  Auffmordt  v.  Hedden. 

The  following  quotation  from  the  instructions  of  1885  will  suffice 
to  explain  the  reasons  for  the  rule:  "The  law  provides  that  the  mer- 
chant appraiser  shall  be  familiar  with  the  character  and  value  of  the 
goods  in  question,  and  it  is  presumed  that  the  general  appraiser  will 
have  or  will  acquire  such  expert  knowledge  of  the  goods  he  is  to  ap- 
praise as  to  enable  him  to  intelligently  perform  his  official  duty  with  a 
due  regard  for  the  rights  of  all  parties  and  independently  of  the  tes- 
timony of  interested  witnesses.  The  functions  of  the  reappraising 
board  are  the  same  as  those  of  the  original  appraisers.  They  are 
themselves  to  appraise  the  goods,  and  not  to  depend  for  their  infor- 
mation upon  the  appraisement  of  so-called  experts  in  the  line  of  goods 

12  See  rules  regarding  examination  of  immigrants,  125  Fed.  643. 

13  Only  a  portion  of  the  opinion  of  Fuller,  C.  J.,  is  printed. 


Ch.  5)  HEARING  AND    EVIDENCE.  209 

in  question.  *  *  *  Appraisers  are  authorized  to  summon  wit- 
nesses, but  there  is  no  authority  for  the  pubhc  examination  of  such 
witnesses  or  their  cross-examination  by  importers  or  counsel  em- 
ployed by  such  importers.  The  appraising  officers  are  entitled  to  all 
information  obtainable  concerning  the  foreign  market  value  of  goods 
under  consideration,  but  such  information  is  not  public  property.  It 
is  due  to  merchants  and  others  called  to  give  such  information  that 
their  statements  shall  be  taken  in  the  presence  of  official  persons  only. 
It  must  often  occur  that  persons  in  possession  of  facts  which  would 
be  of  value  to  the  appraisers  in  determining  market  values  are  de- 
terred 'from  appearing  or  testifying  by  the  publicity  given  to  reap- 
praisement  proceedings." 

As  already  stated,  plaintiff  in  the  case  at  bar  was  invited  by  the 
appraisers  to  present  his  views  in  regard  to  the  reappraisement,  and 
to  suggest  questions  to  be  put  to  the  witnesses.  He  did  not  avail  him- 
self of  the  opportunity,  but  insisted  on  the  right  to  remain  throughout 
the  proceedings,  to  be  informed  as  to  all  the  evidence,  and  to  cross- 
examine  the  witnesses  as  in  open  court.  This,  according  to  Auff- 
mordt  V.  Hedden  and  Passavant  v.  U.  S.,  148  U.  S.  214,  13  Sup.  Ct. 
572,  37  L.  Ed.  426,  could  not  be  conceded.  In  those  cases  it  was 
ruled  that  under  the  revenue  system  of  the  United  States  the  question 
of  the  dutiable  value  of  imported  articles  is  not  to  be  tried  before 
the  appraisers,  as  if  it  were  an  issue  in  a  suit  in  a  judicial  proceeding; 
that  such  is  not  the  intention  of  the  statutes;  that  the  practice  has 
been  to  the  contrary  from  the  earliest  history  of  the  government;  and 
that  the  provisions  of  the  statute  in  this  behalf  are  open  to  no  con- 
stitutional objection. 

As  respects  taxation  and  assessment  for  local  improvements,  such 
notice  and  hearing  as  are  appropriate  to  the  nature  of  the  case,  and 
afford  the  opportunity  to  assert  objections  to  the  methods  pursued  or 
to  the  amount  charged,  are  deemed  sufficient  for  the  protection  of  the 
individual.  Lent  v.  Tillson,  140  U.  S.  316,  327,  11  Sup.  Ct.  825,  35  L. 
Ed.  419. 

Duties  imposed  under  tariff  laws  are  paid  in  order  that  goods  may 

be  brought  into  the  country,  and  provisions  in  respect  of  their  levy 

and  collection  are  framed  in  view  of  the  character  of  the  transaction. 

[    The  finality  of  the  appraisal  is  a  condition  attending  the  importation 

j    prescribed  by  the  government  as  essential  to  the  operation  of  the  sys- 

j    tern;    and,  if  the  importer  is  afforded   such  notice  and  hearing  as 

I    enables  him  to  give  his  views  and  make  his  contention  in  respect  of 

!    the  value  of  his  goods,  he  cannot  complain.     *     *     * 

Judgment  affirmed. 

Fr.Adm.Law. — 14 


210  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 


SECTION  2G.— IN  DEALING  WITH  NUISANCES 


REYNOLDS  V.  SCHULTZ. 

(Superior  Court  of  City  of  New  York,  1867.     27  N.  Y.  Super.  Ct.  282.) 

Robertson,  C.  J.^*  *  *  *  The  statute  ^^  requires  the  execu- 
tion of  the  order  to  be  suspended  on  demand  of  the  party  notified,  and 
a  hearing  to  be  given  him  upon  a  fair  and  reasonable  opportunity 
therefor,  when  he  is  to  be  allowed  to  give  such  proofs  as  he  has  to  of- 
fer, and  the  board  may  also  introduce  new  proofs.  LTpon  such  hear- 
ing they  may  modify  or  rescind  such  order  in  an  action  at  law.  The 
board  were  then  required  to  "cause  the  'facts  in  regard  to  such  com- 
plaint to  be  investigated  and  the  appropriate  remedy  applied."  This 
resembles  greatly  the  trial  and  decision  of  issues  in  an  action.  If 
private  individuals  failed  to  call  to  their  notice  peccant  employments, 
premises  or  substances,  such  board  had  a  staff  of  accusers,  consist- 
mg  of  ten  medical  inspectors,  to  report  twice  a  week  on  such  facts 
as  had  come  to  their  knowledge  relative  to  the  purposes  of  such  act. 
So  that  abundant  means  were  provided  for  obtaining  the  sufficient  j 
proof  which  the  board  were  to  take,  without  leaving  their  office,  or 
uttering  a  word  themselves,  of  accusation.  I  cannot  come  to  any 
other  conclusion  than  that  such  a  mode  of  accusation,  or  obtaining  ev- 
idence in  advance,  with  such  opportunity  of  being  heard  with  evi- 
dence, and  such  a  mode  of  final  determination,  was  an  exercise  of 
judicial  powers,  and  binding,  unless  prevented  by  some  positive  con- 
stitutional prohibition.  If  the  compulsory  attendance  of  witnesses 
'for  the  accused,  if  necessary,  be  required  to  make  the  proceedings 
judicial,  the  board  would  probably  be  bound  to  give  him  the  aid  of 
the  power  they  possess  under  the  twenty-fourth  section  of  the  stat- 
ute, to  procure  testimony.  But  in  this  case  there  is  no  pretense  that 
any  testimony  has  been  lost  by  that  means.  If  it  had  been  set  up,  pos- 
sibly this  court  might  have  exercised  an  equitable  jurisdiction  in 
obtaining  such  testimony,  and  perhaps  also  have  thereby  acquired  ju- 
risdiction over  the  whole  subject.  In  order  to  enable  such  board  to 
obtain  proof  sufficient  for  them  to  act  upon,  there  was  no  necessity  of 
their  becoming  active  in  hunting  up  testimony.  The  twenty-first 
section  of  the  act  requires  them  to  keep  a  book  open  for  public  in- 
spection, in  which  complaints  of  a  sanitary  character  are  to  be  re- 
corded, signed  by  the  accuser  with  his  name,  in  which  is  to  be  entered 
the  name  of  the  accused,  the  date  and  the  remedy  suggested.  This  is 
not  very  unlike  a  complaint.     *     *     * 

1*  Only  a  portion  of  the  opinion  of  Robertson,  C.  J.,  is  printed. 
15  For  provisions  of  statute  in  question,  Laws  N.  Y.  38G6.  c.  74,  see  Metro- 
politan Board  of  Health  v.  Heister,  ante,  p.  137. 


Ch.  5)  HEARING   AND   EVIDENCE.  211 

The  main  objections  to  the  constitutionality  of  the  exercise  of  power 
under  such  first  subdivision  are  that  such  proceedings  violate  "the 
laws  of  the  land"  required  to  be  observed  by  the  second  section  of 
the  article  of  the  Constitution  of  this  state,  and  are  not  ''due  process 
of  law"  under  the  sixth  section  of  the  same  article.  The  special 
points  in  which  they  are  supposed  to  deviate  therefrom  are  six  in 
number,  as  follows : 

(1)  That  the  functions  of  accuser  and  judge  are  blended  in  the 
same  body. 

(2)  That  no  process  is  served,  or  notice  of  the  proceedings  given 
to  parties  interested. 

(3)  That  the  judgment  precedes  the  trial. 

(•i)  That  the  accused  is  not  confronted  with  witnesses  against 
him. 

(5)  That  the  testimony  is  not  under  oath,  nor  the  ordinary  rules 
of  evidence  observed. 

(6)  That  no  means  are  afforded  to  the  accused  to  compel  the  at- 
tendlance  of  witnesses. 

The  remarks  already  made  dispose  of  the  first  and  last  of  these  ob- 
jections. Indeed,  I  am  not  aware  that  there  is  any  warrant  for  as- 
suming that  there  must  be  a  public  prosecutor,  except  in  cases  in 
i  which  the  Constitution  requires  the  presentment  of  a  grand  jury  in 
;  order  to  make  a  conviction  legal.  Prosecuting  officers  are  the  creatures 
I  of  statutes,  and,  however  expedient,  are  not  indispensably  necessary 
'to  procure  the  punishment  of  offenders.  The  people  of  the  state  are 
I  the  accusers  and  "actors"  in  all  cases  of  public  offenses. 
i  The  second  and  third  of  such  objections  are  inapplicable  to  the  case 
[of  an  order,  madle  absolute  by  the  default  of  a  party  notified  to  move 
I  to  set  it  aside  after  notice,  or  confirmed  after  a  hearing  upon  evidence 
Ion  both  sides.  Indeed,  they  are  founded  upon  the  mistaken  notion 
jthat  the  first  order  is  the  final  adjudication,  instead  of  being  a  condi- 
'tional  order,  made  absolute  only  after  a  hearing,  or  neglect  to  appear 
,after  notice  and  demand  of  such  hearing.  The  seizure  of  chattels  in 
jan  action  of  claim  and  delivery,  or  the  issuing  of  a  preliminary  injunc- 
!tion  order,  attachment  or  order  of  arrest,  would  be  equally  subject  to 
'such  an  objection. 

J  As  to  being  confronted  with  witnesses,  if  that  applies  to  the  hearing, 
;he  board  are  bound  to  allow  it,  if  their  proceeding  would  otherwise  be 
l.mconstitutional,  and  any  irregularity  in  that  respect  could  be  cor- 
j'ected  on  certiorari.  If  oaths  are  necessary  to  be  administered  to  v/it- 
jiesses,  the  same  rule  would  prevail.^*'  Although  I  am  not  prepared! 
lO  say  that  an  adjuration  of  a  witness,  the  form  of  which  may  be 
'/aried  by  law,  and  is  allowed  according  to  the  conscience  of  the  party 

i 

!  isGroenvelt  v.  Burwell,  1  Ld.  Raym.  454,  472  (1G99):  "And  by  Holt. 
Ivhief  Justice,  where  judicial  power  is  given  to  persons  by  statute,  they  may 
I'y  consequence  of  law  administer  an  oath ;  but  to  that,  he  said,  he  would 
;0t  give  a  positive  opinion." 


212  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

sworn,  including-  the  simple  affirmation  of  a  member  of  the  Society 
of  Friends,  is  a  constitutional  requisition  to  make  a  trial  valid. 

In  regard  to  the  attendance  of  witnesses,  what  I  have  already  said 
as  to  that  cause  of  complaint  will  suffice.  And  I  am  inclined  to  think 
that  it  will  be  found,  on  examination,  that  a  power  to  compel  the  at- 
tendance of  witnesses  for  the  accused  will  not  be  found  to  be  part  of 
"the  law  of  the  land,"  at  least  that  mentioned  in  "Magna  Charta," 
and  was  given  in  more  recent  times. 

There  still  remains  an  objection  to  be  considered,  to  wit,  that  no 
trial  by  jury  is  allowed  under  such  statute.  The  words  of  the  Consti- 
tution upon  that  point  are  (article  1,  §  3)  that  "the  trial  by  jury  in 
all  cases,  in  which  it  has  been  heretofore  used,  shall  remain  inviolate 
forever."  The  term  "case,"  in  such  provision,  has  been  held  to  mean 
the  kind  of  action,  prosecution  or  proceeding,  and  is  not  confined  to 
the  subject-matter.  Thus,  in  the  case  of  Duffy  v.  People,  6  Hill,  75, 
it  was  held  that  a  proceeding  to  compel  a  husbandl  to  support  his  wife, 
being  a  mere  preventive  proceeding,  like  giving  security  to  keep  the 
peace,  did  not  require  a  trial  by  jury,  and  that,  preventive  remedies 
for  similar  offenses  having  been  used  before  the  adoption  of  the  Con- 
stitution, obtaining  them  was  not  a  "case"  within  the  meaning  of  the 
Constitution  in  which  trials  by  jury  had  been  used,  although  it  was 
held  that  the  adjudication  of  the  magistrate  on  the  subject  of  the  mar- 
riage of  the  parties,  although  sufficient  to  compel  giving  security,  was 
not  conclusive.  But  although  the  judgment  for  the  abatement  of  a 
nuisance  at  common  law,  "quod  permittat  prosternere,"  may  have  re- 
quired a  trial  by  jury,  when  demanded,  yet  courts  of  equity  could  al- 
ways restrain  the  conducting  of  any  business  which  was  one,  without 
such  jury.  And  that  is  all  which  the  order,  as  finally  modified  in  this 
case,  does.     Such  objection,  therefore,  falls  to  the  ground.     *     *     * 


HUTTON  V.  CITY  OF  CAMDEN. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1S7G.     39  N.  J.  Law,  122, 
23  Am.  Rep.  203.) 

Be;asley,  C.  J.^^  *  *  *  But  to  rest  here  would  be  to  put  this 
matter  on  too  narrow  a  ground.  There  is  an  infirmity  in  all  proceed- 
ings of  this  nature,  which  lies  deeper  than  the  one  just  noticed.  As- 
suming the  power  in  this  board,  derived  from  the  Legislature,  to.  ad- 
judge the  fact  of  the  existence  of  a  nuisance,  and  also  assuming  such 
jurisdiction  to  have  been  regularly  exercised,  and  upon  notice  to  the 
parties  interested,  still,  I  think,  it  is  obvious  that,  in  a  case  such  as 
that  before  this  court,  the  finding  of  the  sanitary  board  cannot  operate 
in  any  respect,  as  a  judgment  at  law  would,  upon  the  rights  involved. 
It  will  require  but  little  reflection  to  satisfy  any  mind,  accustomed  to 

17  For  first  part  of  opinion,  see  ante,  p.  136. 


Ch.  5)  HEARING  AND   EVIDENCE.  213 

judge  by  legal  standards,  of  the  truth  of  this  remark.  To  fully  esti- 
mate the  character  and  extent  of  the  power  claimedl  will  conduct  us 
to  its  instant  rejection.  The  authority  to  decide  when  a  nuisance  ex- 
ists is  an  authority  to  find  facts,  to  estimate  their  force,  and  to  apply 
rules  of  law  to  the  case  thus  made.  This  is  a  judicial  function,  and  it 
is  a  function  applicable  to  a  numerous  class  of  important  interests. 
The  use  of  land  and  buildings,  the  enjoyment  of  water  rights,  the  prac- 
tice of  many  trades  and  occupations,  and  the  business  of  manufacturing 
in  particular  localities,  all  fall,  on  some  occasions,  in  important  respects, 
within  its  sphere.  To  say  to  a  man  that  he  shall  not  use  his  property 
as  he  pleases,  under  certain  conditions,  is  to  deprive  him,  pro  tanto,  of 
the  enjoyment  of  such  property.  To  find  conclusively  against  him 
that  a  state  of  facts  exists  with  respect  to  the  use  of  his  property,  or 
the  pursuit  of  his  business,  which  subjects  him  to  the  condemnation 
of  the  law,  is  to  affect  his  rights  in  a  vital  point. 

The  next  thing  to  depriving  a  man  of  his  property  is  to  circumscribe 
him  in  its  use,  and  the  right  to  use  property  is  as  much  under  the  pro- 
tection of  the  law  as  the  property  itself,  in  any  other  aspect,  is ;  and 
the  one  interest  can  no  more  be  taken  out  of  the  hands  of  the  ordinary 
tribunals  than  the  other  can.  If  a  man's  property  cannot  be  taken 
away  from  him  except  upon  trial  by  jury,  or  by  the  exercise  of  the 
right  of  eminent  domain  upon  compensation  made,  neither  can  he,  in 
any  other  mode,  be  limited  in  the  use  of  it.  The  right  to  abate  public 
nuisances,  whether  we  regard  it  as  existing  in  the  municipalities,  or 
in  the  community,  or  in  the  land  of  the  individual,  is  a  common-law 
right,  and  is  derived,  in  every  instance  of  its  exercise,  from  the  same 
source — that  of  necessity.  It  is  akin  to  the  right  of  destroying  prop- 
erty for  the  public  safety,  in  case  of  the  prevalence  of  a  devastating 
fire  or  other  controlling  exigency.  But  the  necessity  must  be  present 
to  justify  the  exercise  of  the  right,  and  whether  present  or  not  must 
be  submitted  to  a  jury  under  the  guidance  of  a  court.  The  finding  of 
a  sanitary  committee,  or  of  a  municipal  council,  or  of  any  other  body 
of  a  similar  kind,  can  have  no  efifect  whatever,  for  any  purpose,  upon 
the  ultimate  disposition  of  a  matter  of  this  kind.  It  cannot  be  used 
as  evidence  in  any  legal  proceeding,  for  the  end  of  establishing,  finally, 
the  fact  of  nuisance,  and  if  it  can  be  made  testimony  for  any  purpose 
it  would  seem  that  it  can  be  such  only  to  show  that  the  persons  act- 
ing in  pursuance  of  it  were  devoid  of  that  malicious  spirit  which 
sometimes  aggravates  a  trespass,  and  swells  the  damages. 

I  repeat  that  the  question  of  nuisance  can  conclusively  be  decided, 
for  all  legal  uses,  by  the  established  courts  of  law  or  equity  alone, 
and  that  the  resolutions  of  officers,  or  of  boards  organized  by  force 
of  municipal  charters,  cannot,  to  any  degree,  control  such  decision. 


18  Accord:    Munn  v.  Corbin,  8  Colo.  App.  113,  44  Pac.  783  (1896). 


214  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 


SECTION  27.— IN  REMOVING  FROM  OFFICE 


STATE  ex  rel.  MEADER  v.  SULLIVAN. 

(Supreme  Court  of  Ohio,  1898.     58  Ohio  St.  504,  51  N.  E.  48,  G5  Am.  St. 
Rep.   T81.) 

Spear,  C.  J.^^  Two  questions  are  presented.  One  relates  to  the 
sufificiency  of  the  charges ;  the  other,  to  the  action  of  the  mayor  upon 
them.  [The  decision  upon  the  first  question  is  here  omitted.  See 
ante,  p.  188.] 

Upon  the  other  branch  of  the  case  it  will  be  noted  that  the  an- 
swer avers  that  at  the  trial  "not  a  word  of  evidence  tending  to  sus- 
tain the  truth  of  the  facts  alleged  in  said  charges,  or  either  of  them, 
was  adduced  or  heard  by  said  mayor,  and  that  no  statement  or  in- 
formation of  any  personal  or  official  knowledge  of  the  mayor,  of  any 
kind,  tending  to  substantiate  or  prove  the  facts  alleged  in  said  charges, 
or  either  of  them,  was  made  or  communicated  to  this  defendant." 
It  will  be  further  noted  that  in  his  order  the  mayor  recites  that,  "I 
find  from  the  evidence,  and  also  from  the  facts  within  my  personal 
knowledge,"  etc.  As  stated  elsewhere,  the  power  given  the  mayor 
is  not  judicial  within  the  meaning  of  the  Constitution,  yet,  as  al- 
ready found,  it  is  not  to  be  exercised  arbitrarily;  that  is,  a  hearing  is 
to  be  given  the  accused,  and  he  is  to  have  the  opportunity  to  refute 
what  is  adduced  against  him.  So  that  it  would  not  be  a  proper  ex- 
ercise of  power  for  the  mayor  to  determine  the  truth  of  a  charge  on 
his  own  personal  knowledge  without  making  that  publicly  known, 
and  offering  the  opportunity  above  alluded  to.  If  the  averment  that 
not  a  word  of  evidence  tending  to  sustain  the  truth  of  the  facts  al- 
leged was  adduced  or  heard  by  the  mayor,  etc.,  is  to  be  taken  as  an 
averment  that  no  testimony  at  all  was  heard,  but  that  the  mayor's 
finding  rested  entirely  on  facts  within  his  personal  knowledge,  un- 
communicated — and  it  is  insisted  by  counsel  for  defendant  in  error 
that  such  is  its  meaning — then  clearly,  upon  this  ground,  also,  should 
the  mayor's  order  be  held  invalid. 

The  majority  of  the  court,  at  least,  inclines  to  regard  the  legal 
effect  of  the  averment  as  a  conclusion  of  law  merely ;  that  is,  that  in 
the  opinion  of  the  pleader  the  evidence  did  not  tend  to  sustain  the 
truth  of  the  charges,  and  that  whatever  statement  the  mayor  may 
have  made  upon  personal  knowledge  did  not  tend  to  substantiate  the 
facts  alleged. 

19  For  statement  of  case,  see  ante,,  p.  188. 


Ch.  5)  HEARING  AND   EVIDENCE.  215 

The  decision  therefore  is  rested  upon  the  first  proposition.     Judg- 
ment affirmed.-'^ 

MiNSHALL,  J.,  dissents. 


PEOPLE  ex  rel.  McALEER  v.  FRENCH  et  al. 
(Court  of  Appeals  of  New  York,  1890.     119  N.  Y.  502,  23  N.  E.  lOGl.) 

Appeal  from  Supreme  Court,  General  Term,  First  Department. 

The  police  commissioners  of  New  York  city  dismissed  the  relator 
from  the  police  force  for  intoxication.  On  certiorari  that  order  was 
affirmed  by  the  Supreme  Court,  General  Term,  and  relator  appeals. 

Earl,  J.-^  The  members  of  the  police  force  of  the  city  of  New 
York  have  a  permanent  tenure  of  office ;  and  they  cannot  be  dis- 
missed from  the  force,  for  any  fault  or  misconduct,  until  after 
charges  have  been  preferred  against  them,  and  such  charges  have 
been  examined,  heard,  and  investigated  as  provided  in  the  statutes, 
and  the  rules  adopted  by  the  board  of  police  commissioners.  The  fol- 
lowing is  one  of  the  rules  adopted  by  that  board:  "Any  member  of 
the  police  force  may  be  punished  by  the  board  of  police,  in  their  dis- 
cretion, either  by  reprimand,  forfeiture,  and  withholding  pay,  not 
exceeding  thirty  days  for  any  one  ofifense,  or  by  dismissal  from  the 
force  on  conviction  of  either  of  the  following  offenses,  to  wit." 
Among  the  offenses  specified  are  intoxication,  neglect  of  duty,  and 
conduct  unbecoming  an  officer.  We  are  dealing  in  this  case  with  the 
offense  of  intoxication,  as  that  was  the  charge  made  against  the  relator. 
*  *  *  Taking  the  case  as  it  appears  to  us,  it  was  certainly  a  very 
severe  punislTment  to  dismiss  the  relator  from  the  police  force,  where 
he  had  so  long  and  faithfully  served.  But  the  extent  of  the  punish- 
ment rested  entirely  in  the  discretion  of  the  commissioners,  and  neither 
the  Supreme  Court  nor  this  court  has  any  jurisdiction  to  interfere 
therewith. 

We  think  the  force  and  effect  of  the  decision  in  the  Masterson 
Case  ^-  has  been  somewhat  misapprehended.  In  determining  the 
guilt  of  a  police  officer  who  is  on  trial  for  charges  preferred  against 
him,  the  police  commissioners  cannot  act  upon  their  own  knowledge. 
The  charges  must  be  tried  upon  evidence,  and  the  guilt  must  be  es- 
tablished by  evidence  produced  before  the   commissioners   upon   the 

2  0  "The  law  contemplates  that  the  members  of  the  board  will  act  upon 
proof  of  some  sort  appropriate  to  the  case  and  made  a  matter  of  record;  not 
necessarily  that  they  will  in  all  cases  act  regardless  of  personal  investiga- 
tion, but  that  in" case  of  reliance  thereon  the  result  of  the  investigation  will 
be  made  matter  of  record."  State  ex  rel.  Medical  College  v.  Chittenden,  127 
Wis.  468.  517,  107  N.  W.  500   (190G). 

21  Only  a  portion  of  the  opinion  of  Earl,  J.,  is  printed. 

22  People  ex  rel.  Masterson  v.  French,  110  N.  Y.  494.  18  N.  E.  1.33  (18SS). 
See,  also,  People  v.  Glennon,  37  Misc.  Rep.  1,  74  N.  Y.  Supp.  794  (1902). 


216  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

trial.  They  can  neither  act  upon  their  own  knowledge,  nor  supple- 
ment the  evidence  by  their  own  knowledge.  But,  in  inflicting  the 
punishment,  they  may  take  into  consideration  the  evidence,  as  well 
as  their  own  knowledge  of  the  police  officer,  and  inflict  such  punish- 
ment, authorized  by  the  rules  and  the  statutes,  as,  in  their  judgment, 
the  case,  in  view  of  all  the  circumstances,  requires.  We  did  not  de- 
termine in  that  case  that  the  Supreme  Court,  upon  certiorari,  did  not 
have  jurisdiction  to  review  the  determination  of  the  police  commis- 
sioners upon  the  evidence;  and  it  is  a  mistake  to  suppose  that,  if 
there  is  any  evidence  in  the  record  brought  to  the  Supreme  Court  by 
certiorari  sustaining  the  determination  of  the  commissioners,  that 
court  has  no  right  to  interfere  therewith.  Such  is  the  rule  in  this 
court,  and  such  was  the  rule  at  common  law. 

But  now,  by  section  2140  of  the  Code  of  Civil  Procedure,  upon  the 
hearing  on  the  return  of  a  writ  of  certiorari  the  Supreme  Court  may 
inquire  whether  there  was  any  competent  proof  of  all  the  facts  neces- 
sary to  prove  in  order  to  authorize  the  making  of  the  determination, 
and,  if  there  was  such  proof,  whether  there  was,  "upon  all  the 
evidence,  such  a  preponderance  qf  proof  against  the  existence  of 
any  of  those  facts  that  the  verdict  of  a  jury  affirming  the  existence 
thereof,  rendered  in  an  action  in  the  Supreme  Court  triable  by  a 
jury,  would  be  set  aside  by  the  court  as  against  the  weight  of  evi- 
dence." Therefore,  in  all  this  class  of  cases,  it  is  the  duty  of  the 
Supreme  Court,  not  only  to  inquire  whether  there  is  any  competent 
proof  tending  to  establish  the  guilt  of  the  accused  officer,  but  it  must 
look  into  the  evidence;  and,  if  it  finds  that  there  is  a  preponder- 
ance of  evidence  against  the  determination  of  the  commissioners,  then 
it  has  the  same  jurisdiction  to  reverse  the  determination  that  it  has 
to  set  aside  the  verdict  of  a  jury  as  against  the  weight  of  evidence. 
It  is  the  purpose  of  the  law  to  give  a  review  in  the  Supreme  Court 
by  certiorari,  not  only  upon  the  law,  but  upon  the  evidence,  to  the  ex- 
tent specified  in  the  statute ;  and  every  party  who  seeks  such  a  re- 
view is  entitled  to  the  fair  and  judicious  exercise  of  that  jurisdiction. 

We  do  not  perceive  that  the  relator's  right  to  call  witnesses,  and 
have  them  sworn  in  his  behalf,  upon  his  trial,  was  denied  or  curtailed 
by  the  police  commissioner  who  took  the  evidence.  We  are  there- 
fore constrained  to  affirm  the  order;  but,  under  the  circumstances,  it 
must  be  without  costs. 


Ch.  5)  HEARING  AND   EVIDENCE.  217 

SECTION  28.— POWER  TO   OBTAIN   INFORMATION-* 


LANGENBERG  v.  DECKER. 

(Supreme  Court  of  Indiana,  1892.     131  Ind.  471,  31  N.  E.  190,  IG  L.  R. 
A.  lOS.) 

Appeal  from  superior  court,  Marion  county. 

Proceedings  in  habeas  corpus  by  Philip  Decker  against  Henry  W. 
Langenberg,  Sheriff  of  Marion  County.  From  a  judgment  discharg- 
ing plaintiff  from  custody  defendant  appeals.    Affirmed. 

CoFfEY,  J.-*  The  General  Assembly  of  the  state  passed  an  act, 
which  was  approved  and  went  into  force  on  the  6th  day  of  March, 
1891,  entitled  "An  act  concerning  taxation,  repealing  all  laws  in  con- 
flict herewith,  and  declaring  an  emergency."  The.  act  creates  a  state 
board  of  tax  commissioners,  composed  of  five  persons,  viz.,  the  Sec- 
retary of  State,  the  Auditor  of  State,  and  the  Governor  of  the  state, 
who  are  styled  ex  officio  members,  and  two  persons  of  opposite  polit- 
ical faith,  appointed  by  the  Governor  of  the  state.  *  *  *  It  also 
contains  this  provision :  "They  shall  have  the  power  to  send  for  per- 
sons, books,  and  papers,  to  examine  records,  hear  and  question  wit- 
nesses, to  punish  for  contempt  any  one  who  refuses  to  appear  and 
answer  questions  by  fine  not  exceeding  one  thousand  dollars,  and  by 
imprisonment  in  the  county  jail  of  any  county  not  exceeding  thirty 
days,  or  both.  Appeals  shall  lie  to  the  criminal  court  of  Marion  coun- 
ty from  all  orders  of  the  board  inflicting  such  punishment,  which  ap- 

23  The  power  to  require  an  oath  (to  be  administered  by  some  official  au- 
thorized to  administer  oaths)  may  be  implied  from  usage.  United  States  v. 
Bailey,  9  Pet.  238,  9  L.  Ed.  113  (1835).  See,  also,  Caha  v.  United  Stafes, 
152  U.  S.  211,  14  Sup.  Ct.  513,  38  L.  Ed.  415   (1894). 

Power  to  require  production  of  papers,  etc.  Boyd  v.  United  States,  IIG  U. 
S.  616.  6  Sup.  Ct.  524,  29  L.  Ed.  740  (1886)  ;  State  v.  Davis,  108  Mo.  666, 
18  S.  W.  894,  32  Am.  St.  Rep.  640  (1892)  ;  St.  Joseph  v.  Levin,  128  Mo.  558, 
31  S.  W.  101,  49  Am.  St.  Rep.  577  (1895). 

As  to  powers  of  inquisition,  see  Commissioners  of  Enquiry,  12  Coke,  31; 
article  on  the  Corporation  Commission,  11  Law  Magazine  68 ;  University  Com- 
mission, 15  Law  Magazine   (N.  S.)   79. 

j  Power  to  require  information  or  reports,  tending  to  incriminate.  Com.  v. 
Emery.  107  Mass.  172,  9  Am.  Rep.  22  (1871);    Counselman  v.  Hitchcock.  142 

I    U.  S.  547,  12  Sup.  Ct.  195,  35  L.  Ed.  1110  (1892)  ;    Brown  v.  Walker,  161  U. 

I  S.  591,  16  Sup.  Ct.  644,  40  L.  Ed.  819  (1896)  ;  People  ex  rel.  Lewisohn  v.  O'- 
Brien. 176  N.  Y.  253,  68  N.  E.  353  (1903).  overruling  People  v.  Kelly.  24  N. 
Y.  74  (1861)  ;    People  v.  Butler  Street  Foundi-y  Co..  201  111.  236.  66  N.  E.  .349 

!     (1903)  ;    Hale  v.  Henkel,  201  U.  S.  43,  26  Sup.  Ct.  370,  .50  L.  Ed.  652  (1906). 

j        For  general  administrative  power  to  obtain  information    (not  to  be  fovmd 

!  In  English  or  American  law),  see  General  Administrative  Act  of  Prussia  of 
July  30,  1883,  §  119:  "The  administrative  authorities  have  power,  even  in 
other  cases  than  those  expressly  designated  by  law,  to  summon  parties  In  in- 
terest or  their  authorized  representatives  to  an  oral  hearing  for  the  purpose 
of  ascertaining  facts," 

24  Only  a  portion  of  the  opinion  by  Coffey,  J.,  is  printed. 


218  ADMINISTRATIVE   POWER  AND   ACTION.  (Part   1 

peals  shall  be  governed  by  the  laws  providing  for  appeals  in  criminal 
cases  from  justices  of  the  peace,  so  far  as  applicable.  The  sheriffs 
of  the  several  counties  of  the  state  shall  serve  all  process  and  execute 
all  orders  of  the  board." 

Claiming  to  act  under  the  power  and  authority  conferred  upon  it 
by  the  provisions  of  the  statute,  the  state  board  of  tax  commissioners, 
on  its  own  motion,  caused  a  subpoena  duces  tecum  to  be  issued  to  all 
the  banks  in  the  state,  requiring  the  president,  cashier,  and  bookkeeper, 
or  either  of  them,  of  the  bank  named  in  the  subpoena,  to  appear  be- 
fore the  board  at  the  office  of  the  state  board  of  tax  commissioners 
in  the  state  house  in  the  city  of  Indianapolis,  on  a  day  named  in  the 
subpoena,  and  to  bring  and  have  with  them  then  and  there  such  books, 
papers,  and  accounts  of  such  banking  institution  as  should  fully  dis- 
close and  show  the  names  of  all  persons  having  money,  bonds,  stocks, 
notes,  or  other  property  of  value  on  deposit  and  in  the  custody  of 
such  bank  on  the  1st  day  of  April,  1891,  and  the  respective  amounts 
of  such  deposits  or  other  property  in  the  custody  of  the  bank,  and  to 
answer  all  questions  which  might  be  asked  in  relation  thereto  or  with 
reference  to  the  property  owned  by  the  bank  itself,     *     *     * 

One  of  the  subpoenas  was  served  upon  the  appellee  at  the  city 
of  Evansville,  where  he  resides,  and  where  he  is  vice  president  of  a 
state  bank  known  as  the  German  Bank  of  Evansville.  In  answer  to 
the  subpoena  he  appeared  before  the  state  board  of  tax  commissioners 
on  the  25th  day  of  August,  1891,  when  there  were  present  of  the 
members  of  the  board  the  following  persons,  and  others,  viz.,  Claude 
Matthews,  Secretary  of  State,  acting  as  president  of  the  board,  J.  O. 
Henderson,  Auditor  of  State,  and  Ivan  N.  Walker. 

Upon  his  appearance  he  was  duly  sworn,  when  the  following  pro- 
ceedings were  had,  viz. :  "Question.  State  your  name  and  place  of 
residence.  Answer.  Philip  C.  Decker.  I  reside  in  the  city  of  Evans- 
ville. Q.  In  what  business  are  you  engaged?  A.  That  of  banking. 
Q.  With  what  institution  are  you  engaged,  and  in  what  capacity?  A. 
I  am  vice  president  of  the  German  Bank  of  Evansville,  Indiana.  The 
president  lately  died,  and  I  am  acting  as  president.  Our  bank  was 
organized  under  the  laws  of  Indiana.  O.  State  the  aggregate  amount 
of  the  individual  deposits  held  by  the  German  Bank,  of  which  you  are 
vice  president,  on  the  1st  day  of  April,  1891.  A.  About  $300,000.  Q. 
Give  the  amount  of  money  held  on  deposit  by  said  bank  on  the  1st 
day  of  April,  1891,  belonging  to  some  one  depositor.  The  Witness: 
Before  answering  the  question,  I  respectfully  ask  the  board  whether 
there  is  any  appeal,  complaint,  suit,  or  proceeding  of  any  kind  pend- 
ing before  this  board  or  elsewhere  to  assess  any  depositor,  or  to  re- 
vise his  tax  list  in  any  manner.  By  the  Board :  No.  We  are  exer- 
cising the  power  of  discovery.  The  Witness:  I  decline  to  answer, 
under  the  advice  of  counsel,  either  as  to  the  name  of  any  depositor 
or  the  amount  of  his  deposit.     *     *     *  "-^ 

25  A  number  of  similar  questions  and  answers  followed,  which  are  omitted. 


Ch.  5)  HEARING   AND    EVIDENCE.  219 

Thereupon  the  state  board  of  tax  commissioners,  because  of  the 
refusal  of  the  appellee  to  appear  and  answer  the  questions  above  set 
forth,  and  to  give  the  information  thereby  sought  to  be  elicited,  as- 
sessed against  him  a  fine  of  $500,  and  that  he  stand  committed  until 
the  fine  be  paid  or  replevied,  and  entered  the  following  judgment: 
"Therefore  it  is  considered  and  ordered  by  the  state  board  of  tax 
commissioners  that  Philip  C.  Decker,  on  account  of  his  refusal  to  ap- 
pear and  answer  questions,  and  his  disobedience  to  the  order  of  this 
board,  be,  and  hereby  is,  fined  in  the  sum  of  five  hundred  dollars 
($500);  and  it  is  further  considered  by  the  board  that  said  Philip 
C.  Decker  do  stand  committed  to  the  jail  of  Marion  county,  Indiana, 
until  said  fine  be  paid  or  replevied." 

Upon  entering  the  foregoing  judgment,  the  secretary  of  the  boardi 
delivered  to  the  appellant,  as  the  sheriff  of  Marion  county,  a  commit- 
ment reciting  the  fact  that  the  appellee  had  been  fined  the  sum  of  $500 
for  contempt,  and  ordering  that  he  be  committed  to  the  jail  of  Marion 
county  until  discharged  by  due  process  of  law.  Upon  this  commit- 
ment the  appellee  was  arrested.  He  thereupon  filed  his  petition  in 
the  Marion  superior  court,  praying  for  a  writ  of  habeas  corpus.  To 
the  writ  issued  upon  this  petition  the  appellant  made  his  return,  stat- 
ing, among  other  things,  substantially  the  proceedings  above  set 
forth.  To  this  return  the  appellee  filed  exceptions,  which  were  sus- 
tained by  the  court,  and  an  order  was  entered  discharging  the  appellee 
from  custody. 

The  assignment  of  error  calls  in  question  the  propriety  of  the  rul- 
ing of  the  Marion  superior  court  in  sustaining  the  exceptions  to  the 
return  made  by  the  appellant  to  the  writ  of  habeas  corpus.  It  is  con- 
tended by  the  appellee :  First.  That  the  power  to  punish  for  contempt 
is  a  judicial  function,  which  can  only  be  exercised  by  a  court,  and, 
if  it  be  claimed  that  the  act  in  question  makes  the  state  board  of  tax 
commissioners  a  court,  then  so  much  of  the  act  as  seeks  to  do  so  is 
void,  because  it  is  not  embraced  in  the  title  of  the  act,  and  because 
three  of  the  persons  constituting  the  board  are  forbidden  by  the  con- 
stitution of  the  state  from  exercising  judicial  functions.  Second. 
That,  if  the  board  has  power  to  punish  for  contempt,  it  can  only  do 
so  for  the  refusal  of  a  witness  to  appear  and  answer  questions  per- 
tinent and  material  to  some  issue  in  a  suit,  action,  or  proceeding  then 
pending.  Third.  That  the  proceedings  of  the  board  in  this  matter 
are  in  violation  of  the  provisions  of  the  Constitution  of  the  United 
States,  w^hich  provides  that  "the  right  of  the  people  to  be  secure  in 
their  persons,  houses,  papers,  and  effects  against  unreasonable  searches 
and  seizures  shall  not  be  violated,  and  no  warrant  shall  issue  but 
upon  reasonable  cause,  supported  by  oath  or  affirmation,  and  partic- 
ularly describing  the  place  to  be  searched,  and  the  person  or  thing 
to  be  seized."  Fourth.  That  the  state  board  of  tax  commissioners  has 
no  original  jurisdiction,  except  in  the  matter  of  the  assessment  of 
railway  corporations,  and  equalizing  the  assessments  of  real  estate. 


220  ADMINISTRATIVE   TOWER   AND   ACTION.  (Part    1 

These  several  propositions  have  been  ably  and  exhaustively  argued 
on  both  sides,  not  only  in  the  briefs  on  file,  but  also  orally  in  open 
court;  but  it  seems  to  us  that,  if  the  first  proposition  presented  by 
the  appellee,  namely,  that  so  much  of  the  statute  in  question  as  at- 
tempts to  confer  on  the  state  board  of  tax  commissioners  the  power 
to  fine  and  imprison  for  contempt  of  its  authority  is  void  by  reason 
of  being-  in  conflict  with  the  state  constitution,  can  be  sustained,  the 
other  questions  presented  do  not  necessarily  or  properly  arise.  If 
this  position  cannot  be  maintained,  then  some  or  all  of  the  other  prop- 
ositions do  arise,  and  must  be  decided  by  this  court.  But  the  first  in- 
quiry in  a  case  like  this  leads  naturally  to  an  investigation  of  the  au- 
thority under  which  the  complaining  party  has  been  deprived  of  his 
liberty.  The  solution  of  the  question  presented  renders  it  necessary 
that  we  shall  inquire — First,  as  to  what  department  of  the.  state 
government  the  state  board  of  tax  commissioners  belongs;  and,  sec- 
ond, into  the  nature  of  the  power  to  fine  andl  commit  for  contempt. 
*     *     * 

It  is  often  a  matter  of  much  difficulty  to  determine  whether  the 
functions  exercised  by  a  tribunal  of  this  character  are  such  as  per- 
tain exclusively  to  the  courts,  or  whether  they  are  such  as  it  may  law- 
fully exercise.  Mr.  Mechem  on  Public  Office  and  Officers  (section 
637)  says :  "Quasi  judicial  functions  *  *  *  are  those  which  lie 
midway  between  the  judicial  and  ministerial  ones.  The  line  sep- 
arating them  from  such  as  are  thus  on  their  two  sides  are  necessarily 
indistinct ;  but,  in  general  terms,  when  the  law  in  words  or  by  impli- 
cation commits  to  any  officer  the  duty  of  looking  into  facts,  but  after 
a  discretion  in  its  nature  judicial,  the  function  is  termed  quasi  judi- 
cial." 

That  it  was  in  the  power  of  the  General  Assembly  to  confer  on  the 
state  board  of  tax  commissioners  the  power  to  hear  and  determine 
appeals  from  the  county  boards  of  review,  to  equalize  the  assessments 
of  real  estate,  and  to  assess  the  railroad  property  named  in  the  act, 
is  not  doubted ;  and  the  question  as  to  whether  the  Legislature  could 
confer  upon  it  the  power  to  fine  and  imprison  the  citizens  of  the  state 
for  contempt  of  its  authority  depends  upon  whether  such  action  is 
.  purely  judicial  or  only  quasi  judicial.  A  proceeding  against  a  per- 
son as  for  a  contempt  is  ordinarily  in  the  nature  of  a  criminal  pro- 
ceeding, and  statutes  authorizing  punishment  for  contempt  of  the 
authority  of  a  tribunal  are  criminal  statutes,  and  are  to  be  strictly  con- 
strued. Maxwell  v.  Rives,  11  Nev.  213;  Holman  v.  State,  105  Ind. 
513,  5  N.  E.  556. 

In  the  case  of  Ex  parte  Doll,  7  Phila.  (Pa.)  595,  Fed.  Cas.  No.  3,968, 
in  discharging  the  prisoner,  who  had  been  committed  by  a  com- 
missioner appointed  by  the  United  States  Circuit  Court  as  for  a  con- 
tempt for  refusing  to  appear  and  testify  and  produce  certain  books, 
the  court  said :  "I  very  much  doubt  the  power  of  Congress  to  invest 
a  commissioner  with  authority  in  a  proceeding  originally  brought  be- 


Cll.  o)  HEARING  AND   EVIDENCE.  221 

fore  him  to  summarily  commit  a  citizen  for  alleged  contempt.    This 

I  was  an  exercise  of  the  judicial  power  of  the  United  States,  which, 

j  under  the  Constitution,  could  not  be  intrusted  to  an  officer  appointed 

and  holding  his   office  in  the  manner  in  which  they  were  appointed 

I  and  held  their  offices."-'' 

Again,  in  the  celebrated  case  of  Kilbourn  v.  Thompson,  103  U. 
I  S.  182,  26  L.  Ed.  377,  involving  the  question  of  the  power  of  Congress 
to  arrest  and  punish  a  witness  for  contempt  in  refusing  to  answer 
questions  before  a  committee  of  the  house,  Justice  Miller,  in  speak- 
I  ing  for  the  court  said :  "The  Constitution  declares  that  no  person  shall 
I  be  deprived  of  his  life,  liberty,  or  property  without  due  process  of 
j  law,  and  it  has  been  repeatedly  held  by  the  United  States  Supreme 
I  Court  that  this  means  a  trial  in  which  the  rights  of  the  party  shall 
I  be  decided  by  a  court  of  justice,  appointed  by  law,  and  governed) 
I  by  the  rules  of  law  previously  established."' 

So  again,  in  the  case  of  In  re  jMason  (D.  C.)  43  Fed.  510,  in  which 
Mason  had  been  committed  by  a  United  States  circuit  court  commis- 
sioner for  contempt  in  failing  to  appear  and  testify  as  a  witness,  the 
court  said*  "To  arrest  and  punish  for  a  contempt  is  the  highest  exer- 
cise of  judicial  power,  and  belongs  to  judges  of  courts  of  record  or 
superior  courts.  Where  jurisdiction  exists  there  can  be  no  review. 
A  pardon  by  the  executive  is  in  most  cases  the  mode  of  release.  This 
power  is  not,  and  never  has  been,  an  incident  to  the  mere  exercise  of 
judicial  function,  and  such  power  cannot  be  upheld  upon  inference 
and  implication,  but  must  be  expressly  conferred  by  law." 

As  bearing  upon  the  question  now  under  discussion,  see,  also.  In 
re  McLean  (D..  C.)  37  Fed.  648;   Anderson  v.  Dunn,  6  Wheat.  204, 
5  L.  Ed.  242;    Shoultz  v.  McPheeters,  79  Ind.  373;    Vandercook  v. 
Williams,  106  Ind.  345,  1  N.  E.  619,  8  N.  E.  113 ;   Ex  parte  Milhgan, 
4  Wall.  2,  18  L.  Ed.  281 ;   Gregory  v.  State,  94  Ind.  385,  48  Am.  Rep. 
162 ;   Whitcomb's  Case,  120  Mass.  118,  31  Am.  Rep.  502. 
These  cases  lead  to  the  inevitable  conclusion  that  the  power  to  pun- 
i  ish  for  contempt  belongs  exclusively  to  the  courts,   except  in  cases 
where  the  Constitution  of  a  state  expressly  confers  such  power  upon 
some  other  body  or  tribunal.     Our  state  Constitution  confers  such 
j  power  upon  the  General  Assembly,  but  upon  no  other  body.     The 
I  doctrine  that  such  power  rests  with  the  courts  alone  is  based  upon  the 
fact  that  a  party  cannot  be  deprived  of  his  liberty  without  a  trial. 
To  adjudge  a  person  guilty  of  contempt  for  a  refusal  to  answer  ques- 
tions, the  tribunal  must  determine  whether  such  questions  are  mate- 
j  rial,  and  whether  it  is  a  question  which  the  witness  is  bound  to  an- 
swer;   otherwise  it  cannot  be  determined  that  the  witness  is  in  con- 
tempt of  its  authority  in  refusing  to  answer. 

So  far  as  we  are  informed,  the  trial  of  a  citizen,  involving  the  ques- 
tion of  his  liberty,  by  any  civil  tribunal  other  than  a  court,  has  never 
been  sustained,  unless  the  power  to  do  so  was  conferred  by  some  con- 

26  See,  also,  United  States  v.  Beavers  (D.  C.)   125  Fed.  778  (1903). 


222  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

stitutional  provision.  For  the  reasons  above  given,  our  conclusion  is 
that  so  much  of  the  act  under  consideration  as  attempts  to  confer  on 
the  state  board  of  tax  commissioners  power  to  fine  and  imprison  for 
contempt  is  in  violation  of  section  1,  art.  3,  of  our  state  Constitution, 
and  is  void.  It  follows  that  such  board  has  no  authority  to  fine  the 
appellee,  and  commit  him  to  the  jail  of  Marion  county,  and  that  the 
Marion  superior  court  did  not  err  in  ordering  his  release.  *  *  * 
Judgment  affirmed.-^ 


INTERSTATE  COMMERCE  COMMISSION  v.  BRIMSON  et  al. 

(Supreme  Court  of  United  States,  1894.     154  U.  S.  447,  14  Sup.  Ct.  1125,  38 
L.  Ed.   1047.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  North- 
ern District  of  Illinois. 

This  was  a  petition  by  the  Interstate  Commerce  Commission  for  an 
order  requiring  W.  G.  Brimson,  J.  S.  Keefe,  and  W.  R.  Sterling  to 
appear  before  the  commission  and  answer  certain  questions,  and  re- 
quiring Keefe  and  Sterling  to  produce  before  the  commission  certain 
books.  The  Circuit  Court  dismissed  the  petition.  53  Fed.  476.  The 
commission  appealed. 

Mr.  Justice  Harlan.-^  This  appeal  brings  up  for  review  a  judg- 
ment rendered  December  7,  1892,  dismissing  a  petition  filed  in  the 
Circuit  Court  of  the  United  States  on  the  15th  day  of  July,  1892,  by 
the  Interstate  Commerce  Commission,  under  the  act  of  Congress  en- 
titled "An  act  to  regulate  commerce,"  approved  February  4,  1887, 
and  amended  by  the  acts  of  March  2,  1889,  and  February  10,  1891. 
24  Stat.  379,  c.  104;  25  Stat.  855,  c.  382;  26  Stat.  743,  c.  128;  1 
Supp.  Rev.  St.  529,  684,  891  (U.  S.  Comp.  St.  1901,  p.  3154). 

The  petition  was  based  on  the  twelfth  section  of  the  act  authoriz- 
ing the  commission  to  invoke  the  aid  of  any  court  of  the  United  States 
in  requiring  the  attendance  and  testimony  of  witnesses,  and  the  pro- 
duction of  documents,  books,  and  papers. 

The  Circuit  Court  held  that  section  to  be  unconstitutional  and  void, 
as  imposing  on  the  judicial  tribunals  of  the  United  States  duties  that 
were  not  judicial  in  their  nature.  In  the  judgment  of  that  court, 
this  proceeding  was  not  a  case  to  which  the  judicial  power  of  the 
United  States  extended.     53  Fed.  476,  480.     *     *     * 

27  See  Matter  of  Sims.  .54  Kan.  1,  .37  Pac.  1.35,  25  L.  R.  A.  110,  45  Am.  St. 
Rep.  261  (1894);  De  Camp  v.  Archibald,  .50  Ohio  St.  618,  35  N.  PI  1056,  40 
Am.  St.  Rep.  692  (1893)  ;  State  ex  rel.  Ilaughey  v.  Ryan,  182  Mo.  349,  81 
S.  W.  4.35  (1904). 

"It  is  true  that  some  persons  have  power  to  commit,  who  are  not  .iudges, 
as  a  constable  may  commit  for  an  affray  committed  in  his  presence;  and  h^ 
is  liable  to  an  action  if  the  act  is  false".  The  difference  is  that  he  does  not 
commit  for  punishment,  but  for  safe  custody."  Groenvelt  v.  Burwell,  1  Ld. 
Raym.  454,  467  (1699). 

28  Only  a  portion  of  the  opinion  is  printed. 


Ch.  5)  HEARING  AND   EVIDENCE.  22-3 

The  twelfth  section  (26  Stat.  743,  c.  128),  the  validity  of  certain 
parts  of  which  is  involved  in  this  proceeding,  provides  as  follows : 

"That  the  commission  hereby  created  shall  have  authority  to  in- 
quire into  the  management  of  the  business  of  all  common  carriers 
subject  to  the  provisions  of  this  act,  and  shall  keep  itself  informed  as 
to  the  manner  and  method  in  which  the  same  is  conducted,  and  shall 
have  the  right  to  obtain  from  such  common  carriers  full  and  complete 
information  necessary  to  enable  the  commission  to  perform  the  duties 
and  carry  out  the  objects  for  which  it  was  created;  and  the  commis- 
sion is  hereby  authorized  and  required  to  execute  and  enforce  the 
provisions  of  this  act;  and,  upon  the  request  of  the  commission,  it 
shall  be  the  duty  of  any  district  attorney  of  the  United  States  to 
whom  the  commission  may  apply  to  institute  in  the  proper  court  and 
to  prosecute  under  the  direction  of  the  Attorney  General  of  the  Unit- 
ed States  all  necessary  proceedings  for  the  enforcement  of  the  pro- 
visions of  this  act  and  for  the  punishment  of  all  violations  thereof, 
and  the  costs  and  expenses  of  such  prosecution  shall  be  paid  out  of 
the  appropriation  for  the  expenses  of  the  courts  of  the  United  States ; 
and  for  the  purposes  of  this  act  the  commission  shall  have  power  to 
require,  by  subpcena,  the  attendance  and  testimony  of  witnesses  and 
the  production  of  all  books,  papers,  tariffs,  contracts,  agreements, 
and  documents  relating  to  any  matter  under  investigation. 

"Such  attendance  of  witnesses  and  the  production  of  such  docu- 
mentary evidence,  may  be  required  from  any  place  in  the  United 
States,  at  any  designated  place  of  hearing.  And  in  case  of  disobedience 
to  a  subpcena  the  commission,  or  any  party  to  a  proceeding  before 
the  commission,  may  invoke  the  aid  of  any  court  of  the  United  States 
in  requiring  the  attendance  and  testimony  of  witnesses  and  the  pro- 
duction of  books,  papers,  and  documents  under  the  provisions  of  this 
section. 

"And  any  of  the  Circuit  Courts  of  the  United   States  within  the 
jurisdiction  of  which  such  inquiry  is  carried  on  may,  in  case  of  con- 
tumacy or  refusal  to  obey  a  subpoena  issued  to  any  common  carrier 
subject  to  the  provisions  of  this  act,  or  other  person,  issue  an  order 
1    requiring  such  common  carrier  or  other  person  to  appear  before  said 
;    commission  (and  produce  books  and  papers  if  so  ordered)  and  give 
'    evidence  touching  the  matter  in  question;    and  any  failure  to  obey 
such  order  of  the  court  may  be  punished  by  such  court  as  a  contempt 
thereof.    The  claim  that  any  such  testimony  or  evidence  may  tend  to 
}    criminate  the  person  giving  such  evidence  shall  not  excuse  such  wit- 
j    ness   from  testifying;    but  such  evidence  or  testimony  shall  not  be 

'    used  against   such  person   on  the  trial   of   any   criminal   proceeding. 
'    *     *     * " 

!  J.  S.  Keefe,  secretary  and  auditor  of  the  five  roads  mentioned,  was 

I  examined  by   the   commission   as   a   witness.      He   admitted   that   he 

'  had  in  his  possession  a  book  showing  the  names  of  the  stockholders 

1  of  the  Calumet  &  Blue  Island  Railway  Company,  but  refused,  upon 


224  ADMINISTRATIVE   POWKll   AND   ACTION.  (Part    1 

the  demand  of  the  commission,  to  produce  it.  He  also  refused  to 
answer  the  question,  "Do  you  know,  as  a  matter  of  fact,  whether  the 
Illinois  Steel  Company  owns  the  greater  part  of  the  stock  of  these 
several  railroads?" 

William  R,  Sterling,  first  vice  president  of  the  Illinois  Steel  Com- 
pany, was  also  examined  as  a  witness,  and,  after  stating  that  that 
company  had  a  contract  with  the  five  railroads  in  question  to  handle 
the  railroad  business  at  the  five  "plants"  of  the  steel  company,  refused 
to  answer  the  question,  "Is  that  the  only  relation  which  your  company 
sustains  to  these  railroad  companies?" 

On  the  succeeding  day  the  commission  issued  a  subpoena  duces 
tecum,  directed  to  J.  S.  Keefe,  secretary  and  auditor  of  the  five  rail- 
roads in  question,  commanding  him  to  appear  before  that  body,  and 
bring  with  him  the  stock  books  of  those  companies.  A  like  subpoena 
was  issued  to  William  R.  Sterling,  as  first  vice  president  of  the  steel 
company,  commanding  him  to  appear  before  the  commission  and) 
produce  the  stock  books  of  that  company.  Keefe  and  Sterling  ap- 
peared in  answer  to  the  subpoenas,  but  refused  to  produce  the  books, 
or  either  of  them,  so  ordered  to  be  produced. 

The  commission  thereupon,  on  the  15th  day  of  July,  1892,  pre- 
sented to  and  filed  in  the  court  below  its  petition,  embodying  the  above 
facts,  and  prayed  that  an  order  be  made  requiring  and  commanding 
Brimson,  Keefe,  and  Sterling  to  appear  before  that  body  and  an- 
swer the  several  questions  propounded  by  them,  and  which  they  had 
respectively  refused  to  answer,  and  requiring  Keefe  and  Sterling 
to  appear  and  produce  before  the  commission  the  stock  books  above 
referred  to  as  in  their  possession. 

The  answers  of  Brimson,  Keefe,  and  Sterling  in  the  present  pro- 
ceeding, besides  insisting  that  the  questions  propounded  to  them,  re- 
spectively, were  immaterial  and  irrelevant,  were  based  mainly  upon 
the  ground  that  so  much  of  the  interstate  commerce  act  as  empowered 
the  commission  to  require  the  attendance  and  testimony  of  witnesses 
and  the  production  of  books,  papers,  and  documents,  and  authorizes 
the  Circuit  Court  of  the  United  States  to  order  common  carriers  or  per- 
sons to  appear  before  the  commission  and  produce  books  and  papers 
and  give  evidence,  and  to  punish  by  process  for  contempt  any  failure  to 
obey  such  order  of  the  court,  was  repugnant  to  the  Constitution  of  the 
United  States. 

Is  the  twelfth  section  of  the  act  unconstitutional  and  void,  so  far 
as  it  authorizes  or  requires  the  Circuit  Courts  of  the  United  States 
to  use  their  process  in  aid  of  inquiries  before  the  commission?  The 
court  recognizes  the  importance  of  this  question,  and  has  bestowed 
upon  it  the  most  careful  consideration. 

As  the  Constitution  extends  the  judicial  power  of  the  United  States 
to  all  cases  in  law  and  equity  arising  under  that  instrument  or  under 
the  laws  of  the  United  States,  as  well  as  to  all  controversies  to  which 
the  United  States  shall  be  a  party  (article  3,  §  2),  and  as  the  Circuit 


Ch.  5)  HEAKING   AND   EVIDENCE.  225 

Courts  of  the  United  States  are  capable,  under  the  statutes  defining 
and  regulating  their  jurisdiction,  of  exerting  such  power  in  cases  or 
controversies  of  that  character,  within  the  Hmits  prescribed  by  Con- 
gress {'io  Stat.  434,  c.  866),  the  fundamental  inquiry  on  this  appeal 
is  whether  the  present  proceeding  is  a  "case"  or  "controversy,"  with- 
in the  meaning  of  the  Constitution.  The  Circuit  Court,  as  we  have 
seen,  regarded  the  petition  of  the  Interstate  Commerce  Commission 
as  nothing  more  than  an  application  by  an  administrative  body  to  a 
judicial  tribunal  for  the  exercise  of  its  functions  in  aid  of  the  exe- 
cution of  duties  not  of  a  judicial  nature,  and  accordingly  adjudged 
that  this  proceeding  did  not  constitute  a  case  or  controversy  to  which 
the  judicial  power  of  the  United  States  couldl  be  extended. 

At  the  same  time  the  learned  court  said :  "Undoubtedly,  Congress 
may  confer  upon  a  nonjudicial  body  authority  to  obtain  information 
necessary  for  legitimate  governmental  purposes,  and  make  refusal 
to  appear  and  testify  before  it  touching  matters  pertinent  to  any  au- 
thorized inquiry  an  offense  punishable  by  the  courts,  subject,  how- 
ever, to  the  privilege  of  witnesses  to  make  no  disclosures  which  might 
tend  to  criminate  them  or  subject  them  to  penalties  or  forfeitures. 
A  prosecution  or  an  action  for  violation  of  such  a  statute  would  clear- 
ly be  an  original  suit  or  controversy  between  parties,  within  the  mean- 
ing of  the  Constitution,  and  not  a  mere  application,  like  the  present 
one,  for  the  exercise  of  the  judicial  power  in  aid  of  a  nonjudicial 
body."  In  re  Interstate  Commerce  Commission  (C.  C.)  53  Fed.  476, 
480.' 

In  other  words,  if  the   interstate   commerce  act  made  the  refusal 
of  a  witness  duly  summoned  to  appear  and  testify  before  the  commis- 
,    sion,  in  respect  to  a  matter  rightfully  committed  by  Congress  to  that 
i    body  for  examination,  an  offense  against  the  United  States,  punish- 
I    able  by  fine  or  imprisonment,  or  both,  a  criminal  prosecution  or  an 
I    information  for  the  violation  of   such  a   statute  would  be  a  case  or 
!    controversy   to   which   the   judicial   power   of   the  United    States   ex- 
'    tended ;    while  a  direct  civil  proceeding,  expressly  authorized  by  an 
.    act  of  Congress,  in  the  name  of  the  commission,  and  under  the  direc- 
;    tion  of  the  Attorney  General  of  the  United  States,  against  the  witness 
i    so  refusing  to   testify,   to   compel   him   to   give  evidence   before   the 
commission  touching  the  same  matter,  would  not  be  a  case  or  con- 
troversy of  which  cognizance  could  be  taken  by  any  court  established 
1    by  Congress  to  receive  the  judicial  power  of  the  United  States. 
'        This  interpretation  of  the  Constitution  would  restrict  the  employ- 
ment of  means  to  carry  into  effect  powers  granted  to  congress  within 
;    much  narrower  limits  than,  in  our  judgment,  are  warranted  by  that 
•    instrument.     ^'     *     * 

The  question  so  presented  is  substantially,  if  not  precisely,  that 
I  which  would  arise  if  the  witness  was  proceeded  against  by  an  indict- 
}  ment  under  an  act  of  Congress  declaring  it  to  be  an  oflfense  against 
'  Fb.Adm.Law  — 15 


226  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

the  United  States  for  any  one  to  refuse  to  testify  before  the  commis- 
sion after  being  duly  summoned,  or  to  produce  books,  papers,  etc., 
in  his  possession  upon  notice  to  do  so,  or  imposing  penalties  for  such 
refusal  to  testify  or  to  produce  the  required  books,  papers,  and  docu- 
ments. A  prosecution  for  such  offense,  or  a  proceeding  by  informa- 
tion to  recover  such  penalties,  would  have  as  its  real  and  ultimate 
object  to  compel  obedience  to  the  rightful  orders  of  the  commission, 
while  it  was  exerting  the  powers  given  to  it  by  Congress;  and  such 
is  the  sole  object  of  the  present  direct  proceeding.  The  United  States 
asserts  its  right,  under  the  Constitution  and  laws,  to  have  these  ap- 
pellees answer  the  questions  propounded  to  them  by  the  commission, 
and  to  produce  specified  books,  papers,  etc.,  in  their  possession  or 
under  their  control.  It  insists  that  the  evidence  called  for  is  mate- 
rial in  the  matter  under  investigation ;  that  the  subject  of  investiga- 
tion is  within  legislative  cognizance,  and  may  be  inquired  of  by  any 
tribunal  constituted  by  Congress  for  that  purpose.  The  appellees 
deny  that  any  such  rights  exist  in  the  general  government,  or  that 
they  are  under  a  legal  duty,  even  if  such  evidence  be  important  or 
vital  in  the  enforcement  of  the  interstate  commerce  act,  to  do  what 
is  required  of  them  by  the  commission.  Thus  has  arisen  a  dispute 
involving  rights  or  claims  asserted  by  the  respective  parties  to  it; 
and  the  power  to  determine  it  directly,  and,  as  between  the  parties, 
finally,  must  reside  somewhere.  It  cannot  be  that  the  general  gov- 
ernment, with  all  the  power  conferred  upon  it  by  the  people  of  the 
United  States,  is  helpless  in  such  an  emergency,  and  is  unable  to  pro- 
vide some  method,  judicial  in  form  and  direct  in  its  operation,  for 
the  prompt  and  conclusive  determination  of  this  dispute.  *  *  *  -'"' 
The  views  we  have  expressed  in  the  present  case  are  not  inconsistent 
with  anything  said  or  decided  in  those  cases.  They  do  not  in  any 
manner  infringe  upon  the  salutary  doctrine  that  Congress,  excluding 
the  special  cases  provided  for  in  the  Constitution — as,  for  instance, 
in  section  3  of  article  3  of  that  instrument — may  not  impose  upon 
the  courts  of  the  United  States  any  duties  not  strictly  judicial.  The 
duties  assigned  to  the  Circuit  Courts  of  the  United  States  by  the 
twelfth  section  of  the  interstate  commerce  act  are  judicial  in  their 
nature.  The  inquiry  whether  a  witness  before  the  commission  is  bound 
to  answer  a  particular  question  propounded  to  him,  or  to  produce 
books,  papers,  etc.,  in  his  possession,  and  called  for  by  that  body, 
is  one  that  cannot  be  committed  to  a  subordinate  administrative  or 
executive  tribunal  for  final  determination.  Such  a  body  could  not, 
under  our  system  of  government,  and  consistently  with  due  process 
of  law,  be  invested  with  authority  to  compel  obedience  to  its  orders 
by  a  judgment  of  fine  or  imprisonment.     Except  in  the  particular 

29  The  court  refers  to  Gordon  v.  United  States,  117  U.  S.  G97  (1864).  and 
In  re  Sanborn,  148  U.  S.  222,  13  Sup.  Ct.  577,  37  L.  Ed.  429  (1893),  holding 
that  there  is  no  judgment  in  the  legal  sense  of  the  term,  when  the  action  of 
the  courts  is  subject  to  be  set  aside  bj'  another  department  of  the  government. 


Ch.  5)  HEARING   AND   EVIDENCE.  227 

instances  enumerated  in  the  Constitution,  and  considered  in  Ander- 
son V.  Dunn,  G  Wheat.  20-1:,  5  L.  Ed.  242  and  in  Kilbourn  v.  Thomp- 
son, 103  U.  S.  168,  190,  26  L.  Ed.  377,  of  the  exercise  by  either  house 
of  Congress  of  its  right  to  punish  disorderly  behavior  upon  the  part 
of  its  members,  and  to  compel  the  attendance  of  witnesses  and  the  pro- 
duction of  papers  in  election  and  impeachment  cases  and  in  cases 
that  may  involve  the  existence  of  those  bodies,  the  power  to  impose 
fine  or  imprisonment  in  order  to  compel  the  performance  of  a  legal 
duty  imposed  by  the  United  States  can  only  be  exerted,  under  the 
law  of  the  land,  by  a  competent  judicial  tribunal  having  jurisdiction 
in  the  premises.  See  Whitcomb's  Case,  120  Mass.  118,  21  Am.  Rep. 
502,  and  authorities  there  cited. 

Without  the  aid  of  judicial  process  of  some  kind,  the  regulations 
that  Congress  may  establish  in  respect  to  interstate  commerce  can- 
not  be   adequately    or    efficiently    enforced.      One   mode,    as    already 
(Suggested    (the  validity  of  which  is   not   questioned),   of   compelling 
k  witness  to  testify  before  the  Interstate  Commerce  Commission  to  an- 
swer questions  propounded  to  him  relating  to  the  matter  under  in- 
iv^estigation,  and  which  the  law  makes  it  his  duty  to  answer,  and  to 
produce  books,  papers,  etc.,  is  to  make  his  refusal  to  appear  and  an- 
|iwer,  or  to  produce  the  documentary  evidence  called  for,  an  offense 
ligainst  the  United  States,   punishable  by  fine   or  imprisonment.     A 
:riminal  prosecution  of  the  witness  under  such  a  statute,  it  is  con- 
eded,  would  be  a  case  or  controversy,  within   the  meaning  of  the 
i^onstitution,  of  which  a  court  of  the  United  States  could  take  juris- 
jliction.    Another  mode  would  be  to  proceed  by  information  to  recover 
Lny  penalty  imposed  by  the  statute.     A  proceeding  of  that  character, 
t  is  also  conceded,  would  be  a  case  or  controversy  of  which  a  court 
[if  the  United  States  could  take  cognizance.     If,  however.  Congress, 
1  its  wisdom,  authorizes  the  commission  to  bring  before  a  court  of 
lie  United  States  for  determination  the  issues  between  it  and  a  wit- 
ess,  that  mode  of  enforcing  the  act  of  Congress,  and  of  compelling 
le  witness  to  perform  his  duty,  is  said  not  to  be  judicial,  and  is  be- 
jond  the  power  of  Congress  to  prescribe. 

}  We  cannot  assent  to  any  view  of  the  Constitution  that  concedes  the 
lower  of  Congress  to  accomplish  a  named  result  indirectly,  by  par- 
[cular  forms  of  judicial  procedure,  but  denies  its  power  to  accom- 
lish  the  same  result  directly,  and  by  a  dilTerent  proceeding  judicial 
I  form.  We  could  not  do  so  without  denying  to  Congress  the  broad 
scretion  with  which  it  is  invested  by  the  Constitution  of  employ- 
g  all  or  any  of  the  means  that  are  appropriate  or  plainly  adapted 
-  an  end  which  it  has  unquestioned  power  to  accomplish ;  namely, 
e  protection  of  interstate  commerce  against  improper  burdens  and 
scriminations.  Indeed,  of  all  the  modes  that  could  be  constitutionally 
escribed  for  the  enforcement  of  the  regulations  embodied  in  the 
terstate  commerce  act,  that  provided  by  the  twelfth  section  is  the 
le  which,  more  than  any  other,  will  protect  the  public  against  the 


228  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

devices  of  those  who,  taking  advantage  of  special  circumstances,  or 
by  means  of  combinations  too  powerful  to  be  resisted  and  overcome 
by  individual  effort,  would  subject  commerce  among  the  states  to 
unjust  and  unreasonable  burdens. 

The  present  proceeding  is  not  merely  ancillary  and  advisory.  It 
is  not,  as  in  Gordon's  Case,  one  in  which  the  United  States  seeks 
from  the  Circuit  Court  of  the  United  States  an  opinion  that  ''would 
remain  a  dead  letter,  and  without  any  operation  upon  the  rights  of 
the  parties."  The  proceeding  is  one  for  determining  rights  arising 
out  of  specified  matters  in  dispute  that  concern  both  the  general 
public  and  the  individual  defendants.  It  is  one  in  which  a  judgment 
may  be  rendered  that  will  be  conclusive  upon  the  parties  until  reversed 
by  this  court ;  and  that  judgment  may  be  enforced  by  the  process 
of  the  Circuit  Court.  Is  it  not  clear  that  there  are  here  parties  on 
each  side  of  a  dispute  involving  grave  questions  of  legal  rights,  that 
their  respective  positions  are  defined  by  pleadings,  and  that  the  cus- 
tomary forms  of  judicial  procedure  have  been  pursued?  The  per- 
formance of  the  duty  which,  according  to  the  contention  of  the  gov- 
ernment, rests  upon  the  defendants,  cannot  be  directly  enforced  ex- 
cept by  judicial  process.  One  of  the  functions  of  a  court  is  to  compel  ; 
a  party  to  perform  a  duty  which  the  law  requires  at  his  hands.  If 
it  be  adjudged  that  the  defendants  are,  in  law,  obliged  to  do  what 
they  have  refused  to  do,  that  determination  will  not  be  merely  an-  ,! 
ciliary  and  advisory,  but,  in  the  words  of  Sanborn's  Case,  will  be  a 
"final  and  indisputable  basis  of  action,"  as  between  the  commission 
and  the  defendants,  and  will  furnish  a  precedent  in  all  similar  cases,  j 
It  will  be  as  much  a  judgment  that  may  be  carried  into  efifect  by  ju-  ■ 
dicial  process  as  one  for  money,  or  for  the  recovery  of  property,  or 
a  judgment  in  mandamus  commanding  the  performance  of  an  act  or 
duty  which  the  law  requires  to  be  performed,  or  a  judgment  prohibit- 
ing the  doing  of  something  which  the  law  will  not  sanction.  It  is  none  , 
the  less  the  judgment  of  a  judicial  tribunal  dealing  with  questions 
judicial  in  their  nature,  and  presented  in  the  customary  forms  of  ju- 
dicial proceedings,  because  its  efifect  may  be  to  aid  an  administrative' 
or  executive  body  in  the  performance  of  duties  legally  imposed  upon 
it  by  Congress  in  execution  of  a  power  granted  by  the  Constitution. 

:;:  ;!:  :|:    3  0 

For  the  reasons  stated,  the  judgment  is  reversed,  and  the  cause  is 
remanded  for  further  proceedings  in  conformity  with  this  opinion. 
Reversed. 

Mr.  Justice  Field  was  not  present  at  the  argument,  and  took  no 
part  in  the  consideration  or  decision  of  this  case.  Mr.  Chief  Justice 
Fuller,  Mr.  Justice  Brewer,  and  Mr.  Justice  Jackson,  dissent. 

3  0  See.  also,  Kentucky  &  I.  Bridge  Co.  v.  Louisville  &  N.  11.  Co.  (C.  O.) 
37  Fed.  567,  613,  614,  2  L.  R.  A.  289  (1889). 


Ch.  5)  HEARING   AND   EVIDENCE.  229 


In    re    DA\"IES,   Atty.    Gen. 

(Court  of  Appeals  of  New  York,  1901.     168  N.  Y.  89,  61  N.  E.  118,  5G  L.  R. 
A.  855.) 

Appeal  from  Supreme  Court,  Appellate  Division,  Third  Depart- 
ment. 

In  the  matter  of  the  petition  of  John  C.  Davies,  Attorney  General, 
for  an  order  directing  Charles  W.  Morse  and  others  to  appear  before 
a  referee  for  examination.  From  an  order  of  the  Appellate  Division 
(55  App.  Div.  245,  67  N.  Y.  Supp.  492),  reversing  an  order  of  the 
Special  Term  denying  a  motion  to  vacate  and  set  aside  an  order  di- 
recting said  ]\Iorse  and  others  to  appear  and  be  examined  under  Laws 
1899,  c.  690,  and  which  vacated  such  order,  the  Attorney  General  ap- 
peals.    Reversed,  and  order  of  Special  Term  affirmed. 

Vann,  J.^^  *  *  *  'p|-,g  statute  which  gives  rise  to  this  con- 
troversy is  entitled  "An  act  to  prevent  monopolies  in  articles  or  com- 
modities of  common  use,  and  to  prohibit  restraints  of  trade  and  com- 
merce, providing  penalties  for  violations  of  the  provisions  of  this  act, 
and  procedure  to  enable  the  Attorney  General  to  secure  testimony  in 
relation  thereto."     Laws  1899,  c.  690.     *     *     * 

It  authorizes  the  Attorney  General  to  bring  an  action  in  the  name 
of  the  people  against  any  corporation,  foreign  or  domestic,  its  officers 
or  agents,  or  against  any  person,  "to  restrain  and  prevent  the  doing 
in  this  state  of  any  act  herein  declared  to  be  illegal,  or  any  act,  in, 
toward  or  for  the  making  or  consummation"  of  any  prohibited  con- 
tract or  combination,  wherever  the  same  may  have  been  made.  Sec- 
tion 3. 

It  declares  that  "whenever  the  Attorney  General  has  determined  to 
commence  an  action"  under  the  act,  before  beginning  the  same  he 
may  present  to  any  justice  of  the  Supreme  Court  an  application  in 
writing  for  an  order  directing  the  persons  mentioned  therein  to  ap- 
pear before  such  justice  "or  a  referee  designated  in  such  order,  and 
answer  such  questions  as  may  be  put  to  them,  *  *  *  and  produce 
such  papers,  documents  and  books  concerning  any  alleged  illegal  con- 
tract" or  combination  in  violation  of  the  act.  Said  application  "may 
simply  show  upon"  the  "information  and  belief"  of  the  Attorney  Gen- 
eral "that  the  testimony  of  such  person  or  persons  is  material  and  neces- 
sary." It  is  made  the  duty  of  the  justice  to  grant  the  application, 
with  such  preliminary  injunction  as  may  appear  to  him  to  be  proper 
and  expedient,  and  of  the  witness  to  attend  at  the  time  and  place  des- 
ignated. "The  testimony  of  each  witness  must  be  subscribed  by  him, 
and  all  must  be  filed  in  the  office  of  the  clerk  of  the  coimty  in  which 
such  order  for  examination  is  filed."  The  provisions  of  the  Code  of 
Civil  Procedure  relating  to  the  examination  of  witnesses  before  the 

31  Ouly  a  portion  of  this  case  is  printed. 


230  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

commencement  of  an  action  "shall  not  apply  except  as  herein  pre- 
scribed."    Section  4. 

The  order  must  be  signed  by  the  justice  making  it,  and  the  Attor- 
ney General  may  indorse  upon  the  same  "a  clause  requiring  such  per- 
son to  produce  on  such  examination  all  books,  papers  and  documents 
in  his  possession,  or  under  his  control,  relating  to  the  subject  of  such 
examination."     Section  5. 

No  person  is  "excused  from  answering  any  questions  or  from  pro- 
ducing any  books"  because  the  evidence,  documentary  or  otherwise, 
may  tend  to  incriminate  him,  but  he  is  protected  from  criminal  pros- 
ecution and  from  any  penalty  or  forfeiture  "on  account  of  any  trans- 
action, matter  or  thing  concerning  which  he  may  testify,  or  produce" 
documentary  evidence.     Section  6. 

The  referee  so  appointed  is  given  "all  the  powers  and  is  subject  to 
all  the  duties  of  a  referee  appointed  under  section  1018  of  the  Code  of 
Civil  Procedure,  so  far  as  practicable,  and  may  punish  for  contempt 
a  witness  duly  served  as  prescribed  in  this  act  for  nonattendance  or 
refusal  to  be  sworn  or  to  testify,  or  to  produce  books,"  documents, 
etc.,  "in  the  same  manner,  and  to  the  same  extent  as  a  referee  ap- 
pointed to  hear,  try  and  determine  an  issue  of  fact  or  of  law."  Sec- 
tion 7. 

Pursuant  to  this  act  the  Attorney  General  presented  to  a  justice 
of  the  Supreme  Court,,  at  chambers,  his  petition,  verified  upon  infor- 
mation and  belief,  in  which  he  stated  that  "as  such  officer"  he  had 
determined  to  commence  an  action  under  said  statute  in  the  name  of 
the  people  against  the  American  Ice  Company,  a  foreign  corporation 
engaged  in  business  in  the  state  of  New  York,  and  against  its  offi- 
cers and  directors,  to  restrain  them  "from  doing  in  this  state  any  act 
in,  towards,  or  for  the  making  or  consummation  of"  a  certain  con- 
tract or  combination,  "and  from  doing  business  in  the  state  of  New 
York,  and  to  vacate,  annul,  and  set  aside  the  certificate  procured  from 
the  Secretary  of  State,  pursuant  to  section  15  of  the  general  corpora- 
tion law,  authorizing  said  company  to  do  business  in  the  state  of  New 
York."     *     *     * 

The  petitioner  set  forth  the  names  of  28  persons,  and  alleged  that 
the  testimony  of  each  was  "material  and  necessary  to  the  establish- 
ment of  the  unlawful  agreement,  arrangement,  or  combination  whereby 
the  above-described  monopoly  in  the  sale  of  ice  was  created  and  es- 
tablished and  has  been  maintained."  The  remaining  allegations  of 
the  petition  show  the  relations  of  some  of  the  proposed  witnesses  to 
the  American  Ice  Company,  the  opportunity  of  others  for  knowing 
about  the  combination,  and  of  others  still  for  knowing  about  other 
companies  in  the  city  of  New  York  whose  business  had  been  absorbed 
by  the  constituent  companies,  and  through  them  by  the  American  Ice 
Company.  It  is  also  alleged  that  the  principal  office  of  the  American 
Ice  Company  is  located  in  the  city  of  New  York,  and  the  source  of 
the  petitioner's  knowledge  and  the  grounds  of  his  belief  as  to  the 


Ch.  5)  HEARING  AND    EVIDENCE,  231 

truth  of  the  allegations  of  the  petition  are  briefly  stated.  The  re- 
lief asked  is  that  an  order  be  made  directing  the  persons  named 
to  appear  before  a  referee,  "and  answer  such  questions  as  may  be 
put  to  them,  or  any  of  them,  and  produce  all  papers,  documents, 
and  books  concerning  the  aforesaid  illegal  arrangement,  agreement, 
or  combination." 

Upon  the  presentation  of  this  petition  the  justice  made  an  order 
requiring  Charles  W.  Morse,  who  is  president  of  the  American  Ice 
Company,  and  the  other  persons  named,  to  appear  before  a  referee  for 
the  purpose  of  the  examination  provided  'for  by  the  act.  Mr.  Morse  was 
also  directed  to  produce  "all  contracts  and  agreements  of  the  American 
Ice  Company  with"  13  other  ice  companies,  as  well  as  certain  other 
contracts  relating  to  the  purchase  of  ice  and  the  plants,  business,  and 
good  will  of  ice  dealers  in  the  city  of  New  York.  He  moved  to 
vacate  the  order,  and  thus  the  questions  arose  that  we  are  called  upon 
to  review.     *     *     * 

The  validity  of  the  procedure  authorized  by  the  act,  how^ever,  is 
challenged  as  in  violation  of  both  the  state  and  federal  Constitutions. 
The  first  and  second  questions  certified  involve  the  proposition  that 
the  statute  imposes  other  than  judicial  duties  upon  a  judicial  officer, 
and  that  for  this  reason  the  provisions  relating  to  the  procedure  are 
unconstitutional  and  void.     *     *     * 

While  the  performance  of  administrative  duties  cannot  be  imposed 
by  the  Legislature  upon  the  Supreme  Court  as  such,  except  as  to 
matters  incidental  to  the  exercise  of  judicial  powers,  yet  for  many 
years,  and  without  serious  question,  acts  have  been  passed  conferring 
upon  the  justices  of  that  court  authority,  out  of  term,  to  perform  a 
variety  of  functions,  administrative  or  semiadministrative  in  character, 
such  as  the  approval  of  certificates  of  incorporation,  the  acknowledg- 
ment of  conveyances,  the  solemnization  of  marriages,  the  appointment 
of  commissioners  of  jurors,  the  investigation  of  the  financial  afifairs  of 
villages,  and  the  like.  2  Rev.  St.  p.  755,  §  4;  Laws  1847,  p.  319,  §  1; 
Laws  1892,  c.  682,  §  64;  Id.  c.  685;  Laws  1897,  c.  194;  Id.,  c.  430. 
A  distinction  seems  to  prevail  in  practice  between  powers  conferred 
upon  a  court  and  those  conferred  upon  the  judges  thereof. 

The  duties  of  the  justice  to  whom  application  was  made  for  the 
order  in  question  were  judicial  in  form.  He  was  not  required  to  grant 
it  as  a  matter  of  course,  although  the  language  used  is  mandatory  upon 
its  face,  as  it  was  in  Jenkins  v.  Putnam,  106  N.  Y.  272,  12  N.  E.  613, 
yet  we  declared  that :  "While  it  is  said  in  section  873,  Code  Civ.  Proc, 
that  the  judge  'must'  grant  an  order  when  an  affidavit  conforming  to 
the  requirements  of  the  previous  section  is  presented  to  him,  yet  we  do 
not  think  that  the  language  is  absolutely  mandatory,  and  that  it  was 
intended  to  deprive  the  judge  of  all  discretion.  *  *  *  Where  the 
judge  can  see  that  the  examination  is  sought  merely  for  annoyance  or 
for  delay,  and  that  it  is  not  in  fact  necessary  and  material,  he  ought 


232  ADMINISTUATIVIO    I'OWIOU   AND   ACTION.  (Part    1 

not  to  be  required,  and  cannot  absolutely  be  required,  to  make  the 
order." 

The  expressions  in  the  statute,  "it  shall  be  the  duty  of  the  jus- 
tice *  *  *  to  grant  such  application,"  and  "the  order  shall  be 
granted  by  the  justice,"  do  not  deprive  him  of  the  power  to  decide 
whether,  upon  the  facts  alleged,  the  order  should  be  granted.  It  was 
his  duty  to  consider  the  allegations  of  the  petition,  and  decide  whether 
they  made  out  a  case  pursuant  to  the  statute,  and  authorized  an  order 
of  examination  according  to  its  provisions.  It  was  necessary  for  him 
to  be  satisfied  judicially  that  the  Attorney  General  had,  in  good  faith, 
determined  to  commence  an  action,  and  whether  the  testimony  of  the 
persons  named  was  material  and  necessary  in  connection  with  that 
action.  The  statute  is  not  satisfied  by  a  simple  statement  of  the  At- 
torney General  in  his  petition  that  he  is  informed  and  believes  that  the 
testimony  of  such  persons  is  material  and  necessary,  but  he  must 
show  how  and  why  it  is  material  and  necessary.  This  involves  the 
general  nature  and  object  of  the  action  that  he  has  determined  to 
bring.  A  determination  to  bring  an  action,  indefinite  and  undefined, 
is  not  what  the  Legislature  contemplated,  but  one  the  general  char- 
acter of  which  is  described  sufficiently  to  show  that  it  is  founded 
upon  the  statute  as  well  as  upon  probable  cause,  and  that  the  testimony 
of  the  witnesses  will  be  material  and  necessary  therein.  Thus  the  jus- 
tice is  called  upon  to  exercise  the  judicial  function  of  deciding  wheth- 
er the  application  conforms  to  the  statute  as  thus  construed,  the  same 
as  is  required  of  him  when  an  application  is  made  for  an  order  of 
arrest,  a  warrant  of  attachment,  or  any  other  provisional  remedy. 
His  duty  is  not  merely  clerical,  but  requires  the  exercise  of  judg- 
ment. When  a  writ  of  habeas  corpus  is  applied  for,  the  statute 
says  that  the  judge  "must  grant  it  without  delay,"  and  even  inflicts  a 
penalty  for  failure  to  comply  with  the  command,  yet  it  is  his  duty  to 
refuse  the  writ  unless  the  facts  required  by  the  code  are  sufficiently 
set  forth.  Code  Civ.  Proc.  §  2020.  In  all  these  cases  the  judge  is 
required  to  act  judicially,  for  he  must  decide  the  question  of  law 
whether  the  facts  alleged  make  out  a  case  under  the  statute. 

But,  while  the  power  committed  to  the  justice  is  judicial  in  form, 
unless  it  is  judicial  in  substance,  and  has  a  judicial  purpose  to  ac- 
complish, the  duty  is  of  an  administrative  character  only.  Since  the 
object  of  the  statute,  so  far  as  it  relates  to  procedure,  is  not  expressly 
stated,  it  must  be  inferred  from  the  title  and  the  provisions  of  the  act. 
The  title  declares  that  the  object  of  the  procedure  is  to  enable  the 
Attorney  General  to  "secure  testimony"  in  relation  to  violations  of  the 
act,  and  the  text  indicates  the  same  purpose.  The  statute  is.  remedial, 
and  it  is  the  duty  of  courts  to  so  construe  it  as  to  "suppress  the  mis- 
chief and  advance  the  remedy."  As  no  notice  to  the  proposed  adverse 
party  is  required,  and  no  opportunity  is  expressly  aiTorded  for  cross- 
examination,  the  testimony  cannot  be  read  in  evidence  upon  the  trial 
of  the  action.     The  taking  of  testimony  for  use  upon  a  trial  is  part 


Ch.  5)  HEARING   AND    EVIDENCE.  233 

of  the  trial  itself,  so  far  as  the  constitutional  provision  allowing  the 
I  right  to  counsel  and  requiring  due  process  of  law  is  concerned.  No 
I  judgment  can  be  pronounced,  or  determination  made,  based  wholly 
I  or  in  part  upon  such  testimony,  which  is  not  reported  to  the  judge  or 
!    court  for  judicial  action. 

I       The  only  use,  so  far  as  we  can  now  see,  that  can  be  made  of  the 
I   testimony,  is  to  enable  the  Attorney  General  either  to  prepare  his  com- 
I   plaint  or  prepare   for  trial.     The   former  is  a  judicial  purpose,  and 
1   is  clearly  within  the  power  of  the  Legislature  to  intrust  to  the  court  or 
I   its  judges.     Glenney  v.  Stedwell,  64  N.  Y.  130.     It  aids  directly  in 
I    framing  the  issues  which  the  court  is  to  try,  tends  to  prevent  the  delay 
resulting  from  amendments  of  the  complaint,  and  thus  advances  the 
remedy  to  the  end  which  is  to  be  effected  by  the  judgment.     In  re 
!    Cooper,  22  N.  Y.  67,  84.     The  other  use  suggested  involves  a  serious 
question.     It  is  urged  that  an  inquisition  into  one's  private  aft'airs,  the 
compulsory  production  of  his  books  and  papers  and  the  disclosure  of 
his  business  secrets,  is  an  invasion  of  personal  liberty  as  guarantied 
by  the  Constitution.     It  is  insisted  that  a  proceeding  which  ends  in 
nothing,  that  establishes  no  right  and  prevents  no  wrong,  either  di- 
rectly or  indirectly,  is  not  of  a  judicial  nature.     *     *     * 

Through  its  legislative  department  the  state  can  examine  witnesses 
with  reference  to  prospective  legislation,  and  why  can  it  not,  through 
its  judicial  department,  under  an  appropriate  statute,  examine  wit- 
nesses in  order  to  establish  in  court  rights  belonging  to  all  its  citizens. 
even  if  the  testimony  is  not  to  be  read  in  court,  but  is  to  be  used  for  a 
purpose  incidental  to  the  trial  ?     *     *     =i= 

The  procedure  authorized  is  in  the  nature  of  a  statutory  bill  of 
discovery.  The  ancient  remedy  of  enforcing  discovery  was  devised 
by  the  courts  to  compel  a  party  in  a  pending  action  at  law  to  dis- 
cover and  set  forth  upon  oath  in  an  independent  action  every  fact  and 
circumstance  within  his  knowledge,  information,  or  belief  material  to 
the  plaintiff's  case.  2  Story,  Eq.  Jur.  (13th  Ed.)  811;  Adams,  Eq. 
(8th  Ed.)  1.  A  bill  of  discovery  was  never  brought  to  a  hearing,  and 
there  could  be  no  decree  on  matters  set  forth  therein,  for  its  sole  object 
was  to  obtain  testimony  for  use  in  another  action.  6  Enc.  PI.  &  Prac. 
781.  It  would  lie  even  if  the  other  action  had  not  been  brought,  pro- 
vided there  was  an  intention  to  bring  it.  Stebbins  v.  Cowles,  10  Conn. 
408.  The  process  of  thus  obtaining  testimony  has  never  been  regarded 
as  an  unauthorized  interference  with  personal  liberty,  but  as  due 
process  of  law.  If  the  courts  themselves,  simply  of  their  own  motion, 
can  establish  such  a  system,  cannot  the  Legislature  create  a  procedure 
similar  in  nature,  even  if  it  is  more  drastic  in  effect? 

It  is  true  that  testimony  thus  taken  could  be  read  in  evidence  upon 
'the  trial  of  the  other  action,  but  is  this  essential  to  a  judicial  purpose, 
or  does  due  process  of  law  require  that  testimony  cannot  be  taken  by  a 
judge,  unless  it  is  to  be  read  in  court,  provided  the  sovereign  power 
needs  it  in  order  to  enforce  its  own  laws  through  judicial  proceedings? 


234  ADMINISTRATIVE   POWER  AND   ACTION.  (Part    1 

Is  the  state  itself,  when  a  litigant,  not  to  establish  a  mere  right  of 
property,  but  a  cause  of  public  justice,  limited  by  its  own  constitution 
to  the  procedure  that  ordinarily  prevails  in  controversies  between  in- 
dividuals, or  has  it  the  power  through  its  legislature  to  authorize  testi- 
mony to  be  taken  in  order  to  aid  its  attorney  general  in  attempting 
to  enforce  its  policy  as  a  political  community  and  to  promote  the  gei\- 
eral  welfare  by  proceedings  in  its  courts  of  justice?  Is  there  no  power 
in  government  to  examine  a  witness  'for  this  purpose?  The  question  is 
not  whether  the  exercise  of  the  power  is  wise  or  discreet,  but  whether 
the  power  exists.  We  are  not  called  upon  to  decide  whether  the  thing 
should  be  done,  but  whether  it  can  be  done ;  and  care  should  be  taken 
in  making  the  decision  not  to  hamper  the  state  in  the  enforcement  of 
law.     *     *     *  =- 

We  think  the  duties  imposed  by  chapter  690  of  the  Laws  of  1899 
upon  justices  of  the  Supreme  Court  are  of  a  judicial  character,  because 
they  are  incidental  to  a  judicial  proceeding;  that  said  statute  does  not 
infringe  upon  personal  liberty  without  due  process  of  law,  and  does 
not  come  within  the  express  or  implied  prohibition  of  the  state  or 
federal  Constitutions.  The  first  question  certified  should  therefore,  be 
answered  in  the  negative,  and  the  second  in  the  affirmative.     *     *     * 

The  order  of  the  Appellate  Division  should  be  reversed,  and  that 
of  the  Special  Term  affirmed,  with  costs,  and  the  questions  certified 
answered  as  indicated  in  the  opinion. 

Bartle;tt  and  O'Brien,  JJ.,  dissent. 

32  The  court  then  refers  to  Interstate  Commerce  Commission  v.  Brimson, 
154  U.  S.  447,  14  Sup.  Ct.  1125,  38  L.  Ed.  1047  (1894),  ante,  p.  222. 


Cll.  6)  ADMINISTRATIVE   EXECUTION.  235 

CHAPTER  VI 
ADMINISTRATIVE  EXECUTION 


SECTION  29.— DISTRESS  WARRANTS 


DEN  ex  dem.  MURRAY  et  al.  v.  HOBOKEN  LAND  & 
LAIPROVEMENT  CO. 

(Supreme  Court  of  the  United  States,  1S55.    18  How.  272,  15  L.  Ed.  372.) 

Mr.  Justice  Curtis  delivered  the  opinion  of  the  court.^ 
This  case  comes  before  us  on  a  certificate  of  division  of  opinion  of 
the  judges  of  the  Circuit  Court  of  the  United  States  for  the  District  of 
New  Jersey.  It  is  an  action  of  ejectment,  in  which  both  parties  claim 
title  under  Samuel  Swartwout — the  plaintiffs,  under  the  levy  of  an  ex- 
ecution on  the  10th  day  of  April,  1839,  and  the  defendants,  under 
a  sale  made  by  the  marshal  of  the  United  States  for  the  District  of 
New  Jersey,  on  the  1st  day  of  June,  1839,  by  virtue  of  what  is  de- 
nominated a  distress  warrant,  issued  by  the  solicitor  of  the  treasury 
under  the  act  of  Congress  of  May  15,  1820,  entitled  "An  act  providing 
for  the  better  organization  of  the  Treasury  Department."  -     This  act 

1  Onlj'  a  portion  of  this  case  is  printed. 

As  to  distress  warrants  for  nonpayment  of  personal  taxes,  a  very  common 
practice,  see  Cooler  on  Taxation,  p.  438.  As  to  enforcement  of  payment  of 
taxes  by  arrest,  see  Palmer  v.  McMahon,  133  U.  S.  660,  10  Sup.  Ct.  324,  33 
L.  Ed.  772   (1890). 

2  The  provisions  of  the  act  of  May  15,  1820,  bearing  upon  the  question  be- 
fore the  court,  appear  in  the  Revised  Statutes  as  follows : 

"Sec.  3625.  \Yhenever  any  collector  of  the  revenue,  receiver  of  public  money, 
or  other  officer  who  has  received  the  public  money  before  it  is  paid  into  the 
treasury  of  the  United  States,  fails  to  render  his  account,  or  pay  over  the 
same  in  the  manner  or  within  the  time  required  by  law,  it  shall  be  the  duty 
of  the  proper  auditor  to  cause  to  be  stated  the  account  of  such  officer,  ex- 
hibitiug  truly  the  amount  due  to  the  United  States,  and  to  certify  the  same 
to  the  solicitor  of  the  treasury,  who  shall  issue  a  Avarrant  of  distress  against 
the  delinquent  officer  and  his  sureties,  directed  to  the  marshal  of  the  district 
in  which  such  officer  and  his  sureties  reside.  Where  the  officer  and  his  sure- 
ties reside  in  different  districts,  or  where  they,  or  either  of  them,  reside  in  a 
district  other  than  that  in  which  the  estate  of  either  may  be,  which  it  is  in- 
tended to  talve  and  sell,  then  such  warrant  shall  be  directed  to  the  marshals 
of  such  districts  respectively."     (U.  S.  Comp.  St.  1907,  p.  2418.) 

"Sec.  3627.  The  marshal  authorized  to  execute  any  warrant  of  distress 
shall,  by  himself  or  by  his  deputy,  proceed  to  levy  and  collect  the  sum  re- 
maining due,  by  distress  and  sale  of  the  goods  and  chattels  of  such  delinquent 
officer;  having  given  ten  days'  previous  notice  of  such  intended  sale,  by  af- 
fi-xing  an  advertisement  of  the  articles  to  be  sold  at  two  or  more  public  places 
in  the  town  and  county  where  the  goods  or  chattels  were  taken,  or  in  the  town 


2.3(>  ADMIMSTKATIVK    I'OWKK    AND    ACTION.  (Part    1 

having  providcil.  by  its  first  section,  that  a  lien  for  the  amount  due 
should  exist  on  the  lands  of  the  debtor  from  the  time  of  the  levy  and 
record  thereof  in  the  office  of  the  District  Court  of  the  United  States 
for  the  proper  district,  and  the  date  of  that  levy  in  this  case  hehv^ 
prior  to  the  date  of  the  judgment  under  which  the  plaintiffs'  title 
was  made,  the  question  occurred  in  the  Circuit  Court,  "whether  the 
said  warrant  of  distress  in  the  special  verdict  mentioned,  and  the  pro- 
ceedings thereon  and  anterior  thereto,  under  which  the  defendants 
claim  title,  are  sufficient,  under  the  Constitution  of  the  United  States 
and  the  law  of  the  land,  to  pass  and  transfer  the  title  and  estate  of  the 
said  Swartwout  in  and  to  the  premises  in  question,  as  against  the 
lessors  of  the  plaintiff."  Upon  this  question,  the  judges  being  of  op- 
posite opinions,  it  was  certified  to  this  court,  and  has  been  argued 
by  counsel. 

Xo  objection  has  been  taken  to  the  warrant  on  account  of  any  defect 
or  irregularity  in  the  proceedings  which  preceded  its  issue.  It  is  not 
denied  that  they  were  in  conformity  with  the  requirements  of  the  act 
of  Congress.  The  special  verdict  finds  that  Swartwout  was  collector 
of  the  customs  for  the  port  of  New  York  for  eight  years  before  the 
29th  of  March,  1838;  that,  on  the  10th  of  November,  1838,  his  ac- 
count, as  such  collector,  was  audited  by  the  first  auditor,  and  certified 
by  the  first  comptroller  of  the  treasury;  and  for  the  balance  thus 
found,  amounting  to  the  sum  of  $1,374,119.05,  the  warrant  in  question 
was  issued  by  the   solicitor  of  the   treasury.     Its  validity   is  denied 

or  county  where  the  owner  of  such  good.s  or  chattels  may  reside.  If  the  goods 
and  chattels  be  not  sufficient  to  satisfy  the  warrant,  the  same  may  be  levied 
upon  the  person  of  such  officer,  who  may  be  committed  to  prison,  there  to  re- 
main until  discharged  by  due  course  of  law."     (U.  S.  Comp.  St.  1907,  p.  2410.) 

"Sec.  31)30.  For  want  of  goods  and  chattels  of  a  delinquent  officer,  or  his 
sureties,  sufficient  to  satisfy  any  warrant  of  distress  issued  pursuant  to  the 
foregoing  jjrovisions.  the  lands,  tenements,  and  hei'editaments  of  such  officer 
and  his  sureties,  after  being  advertised  for  at  least  three  weeks  in  not  less 
than  three  public  places  in  the  county  or  district  where  such  real  estate  is 
situate,  before  Ihe  time  of  sale,  shall  be  sold  by  the  marshal  of  such  district 
or  his  deputy."     (V.  S.  Comp.  St.  1907.  p.  2410). 

"Sec.  3036.  Any  person  who  considers  himself  aggrieved  by  any  warrant 
of  distress  issued  under  tlie  foregoing  provisions  may  prefer  a  bill  of  com- 
plaint to  any  district  judge  of  the  United  States,  setting  forth  therein  the 
nature  and  extent  of  tlie  injury  of  wliicli  he  complains;  and  thcreupcm  the 
judge  may  grant  an  injunction  to  stay  proceedings  on  such  wan-ant  alto- 
gether, or  for  so  much  thereof  as  the  nature  of  the  case  recpiires.  But  )ii> 
injunction  shall  issue  till  the  party  applying  for  it  gives  bond,  witli  sufficient 
security,  in  a  sum  to  be  prescribed  by  the  judge,  for  the  performance  of  su<h 
judgment  as  may  be  awarded  against  him;  nor  shall  the  issuing  of  such  injunc- 
tion in  any  manner  impair  the  lien  produced  by  the  issuing  of  the  warrant. 
And  the  same  proceedings  shall  be  had  on  such  injunction  as  in  other  cases, 
except  that  no  answer  shall  be  necessary  on  the  part  of  the  ITnited  States;  and 
if,  upon  dissolving  the  injunction,  it  appears  to  the  satisfaction  of  the  judge 
that  the  application  for  the  injunction  was  merely  for  delay,  the  judge  n):iy 
add  to  the  lawful  interest  assessed  on  all  sums  found  due  against  the  com- 
plainant such  damages  as,  with  such  lawful  interest,  shall  not  exceed  tlu' 
rate  of  ten  per  centum  a  year.  Such  injunction  may  be  granted  or  dissolved 
by  the  district  judge  either  in  or  out  of  court."  (U.  S.  Comp.  St.  1007,  P- 
2421.) 


Ch.  6)  ADMINISTKATIVIO    EXECUTION.  237 

by  the  plaintiffs,  upon  the  ground  that  so  much  of  the  act  of  Congress 
as.  authorized  it,  is  in  conflict  with  the  Constitution  of  the  United 
States. 

In  support  of  this  position,  the  plaintiff  relies  on  that  part  of  the 
first  section  of  the  third  article  of  the  Constitution  which  requires 
the  judicial  power  of  the  United  States  to  be  vested  in  one  Supreme 
Court  and  in  such  inferior  courts  as  Congress  may,  from  time  to  time, 
ordain  and  establish,  the  judges  whereof  shall  hold  their  offices  during 
good  behavior,  and  shall,  at  stated  times,  receive  for  their  services 
a  compensation,  which  shall  not  be  diminished  during  their  continuance 
in  ofifice.  Also,  in  the  second  section  of  the  same  article,  which  de- 
clares that  the  judicial  power  shall  extend  to  controversies  to  which  the 
United  States  shall  be  a  party. 

It  must  be  admitted  that,  if  the  auditing  of  this  account,  and  the 
ascertainment  of  its  balance,  and  the  issuing  of  this  process,  was  an 
exercise  of  the  judicial  power  of  the  United  States,  the  proceeding- 
was  void  ;  for  the  officers  who  performed  these  acts  could  exercise  no 
part  of  that  judicial  power.  They  neither  constituted  a  court  of  the 
United  States,  nor  were  they,  or  either  of  them,  so  connected  with  any 
such  court  as  to  perform  even  any  of  the  ministerial  duties  which  arise 
out  of  judicial  proceedings. 

The  question,  whether  these  acts  were  an  exercise  of  the  judicial 
power  of  the  United  States,  can  best  be  considered  under  another 
inquiry,  raised  by  the  further  objection  of  the  plaintiff,  that  the  effect 
of  the  proceedings  authorized  by  the  act  in  question  is  to  deprive  the 
party,  against  whom  the  warrant  issues,  of  his  liberty  and  property, 
"without  due  process  of  law,"  and,  therefore,  is  in  conflict  with  the 
fifth  article  of  the  amendments  of  the  Constitution. 

Taking  these  two  objections  together,  they  raise  the  questions 
whether,  under  the  Constitution  of  the  United  States,  a  collector  of 
the  customs,  from  whom  a  balance  of  account  has  been  found  to  be 
due  by  accounting  officers  of  the  treasury,  designated  for  that  purpose 
by  law,  can  be  deprived  of  his  liberty,  or  property,  in  order  to  enforce 
payment  of  that  balance,  without  the  exercise  of  the  judicial  power  of 
the  United  States,  and  yet  by  due  process  of  law,  within  the  meaning 
of  those  terms  in  the  Constitution ;  and  if  so,  then,  secondly,  whether 
the  warrant  in  question  was  such  due  process  of  law.     *     *     * 

That  the  warrant  now  in  question  is  legal  process  is  not  denied. 
It  was  issued  in  conformity  with  an  act  of  Congress.  But  is  it  "due 
process  of  law"?  The  Constitution  contains  no  description  of  those 
processes  which  it  was  intended  to  allow  or  forbid.  It  does  not  even 
declare  what  principles  are  to  be  applied  to  ascertain  whether  it  be 
due  process.  It  is  manifest  that  it  was  not  left  to  the  legislative 
power  to  enact  any  process  which  might  be  devised.  The  article  is 
a  restraint  on  the  legislative  as  well  as  on  the  executive  and  judicial 
powers  of  the  government,  and  cannot  be  so  construed  as  to  leave 
Congress  free  to  make  any  process  "due  process  of  law"  by  its  mere 


238  ADMINISTRATIVE   POWEIl  AND   ACTION,  (Part    1 

will.  To  what  principles,  then,  are  we  to  resort  to  ascertain  that  pro- 
cess, enacted  by  Congress,  is  clue  process  ?  To  this  the  answer  must  be 
twofold.  We  must  examine  the  Constitution  itself  to  see  whether 
this  process  be  in  conflict  with  any  of  its  provisions.  If  not  found 
to  be  so,  we  must  look  to  those  settled  usages  and  modes  of  proceeding 
existing  in  the  common  and  statute  law  of  England,  before  the 
emigration  of  our  ancestors,  and  which  are  shown  not  to  have  been 
unsuited  to  their  civil  and  political  condition  by  having  been  acted 
on  by  them  after  the  settlement  of  this  country.  We  apprehend  there 
has  been  no  time,  since  the  establishment  of  the  English  monarchy, 
when  there  has  not  been,  by  the  law  of  the  land,  a  summary  method 
for  the  recovery  of  debts  due  to  the  Crown,  and  especially  those  due 
from  receivers  of  the  revenues.     *     *     * 

It  is  certain  that  this  diversity  in  "the  law  of  the  land"  between 
public  defaulters  and  ordinary  debtors  was  understood  in  this  country, 
and  entered  into  the  legislation  of  the  colonies  and  provinces,  and  more 
especially  of  the  states,  after  the  Declaration  of  Independence  and  be- 
fore the  formation  of  the  Constitution  of  the  United  States.  Not  only 
was  the  process  of  distress  in  nearly  or  quite  universal  use  for  the 
collection  of  taxes,  but  what  was  generally  termed  a  warrant  of 
distress,  running  against  the  body,  goods,  and  chattels  of  defaulting 
receivers  of  public  money,  was  issued  to  some  public  officer,  to  whom 
was  committed  the  power  to  ascertain  the  amount  of  the  default,  and 
by  such  warrant  proceed  to  collect  it.  Without  a  wearisome  repetition 
of  details,  it  will  be  sufficient  to  give  one  section  from  the  Mas- 
sachusetts act  of  1786 :  "That  if  any  constable  or  collector,  to  whom 
any  tax  or  assessment  shall  be  committed  to  collect,  shall  be  remiss  and 
negligent  of  his  duty,  in  not  levying  and  paying  unto  the  treasurer 
and  receiver  general  such  sum  or  sums  of  money  as  he  shall  from 
time  to  time  have  received,  and  as  ought  by  him  to  have  been  paid 
within  the  respective  time  set  and  limited  by  the  assessor's  warrant, 
pursuant  to  law,  the  treasurer  and  receiver  general  is  hereby  empow- 
ered, after  the  expiration  of  the  time  so  set,  by  warrant  under  his  hand 
and  seal,  directed  to  the  sheriff  or  his  deputy,  to  cause  such  sum  and 
sums  of  money  to  be  levied  by  distress  and  sale  of  such  deficient  con- 
stable or  collector's  estate,  real  and  personal,  returning  the  overplus,  if 
any  there  be;  and,  for  want  of  such  estate,  to  take  the  body  of  such 
constable  or  collector,  and  imprison  him  until  he  shall  pay  the  same; 
which  warrant  the  sheriff  or  his  deputy  is  hereby  empowered  and  re- 
quired to  execute  accordingly."  Then  follows  another  provision,  that 
if  the  deficient  sum  shall  not  be  made  by  the  first  warrant,  another 
shall  issue  against  the  town;  and  if  its  proper  authorities  shall  'fail 
to  take  the  prescribed  means  to  raise  and  pay  the  same,  a  like  war- 
rant of  distress  shall  go  against  the  estates  and  bodies  of  the  assessors 
of  such  town.  Laws  Mass.  vol.  1,  p.  266.  Provisions  not  distinguish- 
able from  these  in  principle  may  be  found  in  the  acts  of  Connecticut, 
Revision  1781,  p.  198;    of  Pennsylvania,  1782,  2  Laws,  Pa.,  13;    of 


i  Ch.  G)  ADMINISTRATIVE   EXECUTION.  239 

South  Carolina,  1788,  5  Stat.  S.  C,  55 ;  New  York,  1788,  1  Jones  & 
,  Varick's  Laws,  34.  See,  also,  1  Henning's  St.  Va.,  319,  343 ;  13  Hen- 
I  ning's  St.  Va.,  562 ;   Laws  Vt.  1797,  1800,  340. 

Since  the  formation  of  the  Constitution  of  the  United  States,  other 
!  states  have  passed  similar  laws.  See  Union  Towboat  Company  v. 
;  Bordelon,  7  La.  Ann.  192.  Congress,  from  an  early  period,  and  in 
I  repeated  instances,  has  legislated  in  a  similar  manner.  By  the  fifteenth 
I  section  of  the  "Act  to  lay  and  collect  a  direct  tax  within  the  United 
I  States,"  of  July  14,  1798,  the  supervisor  of  each  district  was  authorized 
I  and  required  to  issue  a  warrant  of  distress  against  any  delinquent 
I  collector  and  his  sureties,  to  be  levied  upon  the  goods  and  chattels,  and 
!  for  want  thereof  upon  the  body  of  such  collector;  and,  failing  of 
satisfaction  thereby,  upon  the  goods  and  chattels  of  the  sureties.  1 
'Stat.  602.  And  again,  in  1813  (3  Stat.  33,  §  28)  and  1815  (3  Stat. 
[177,  §  33),  the  comptroller  of  the  treasury  was  empowered  to  issue 
ja  similar  warrant  against  collectors  of  the  customs  and  their  sureties. 
This  legislative  construction  of  the  Constitution,  commencing  so  early 
iin  the  government,  when  the  first  occasion  for  this  manner  of  pro- 
1  ceeding  arose,  continued  throughout  its  existence,  and  repeatedly  acted 
[on  by  the  judiciary  and  the  executive,  is  entitled  to  no  inconsiderable 
i  weight  upon  the  question  whether  the  proceeding  adopted  by  it  was 
j"due  process  of  law."  Prigg  v.  Pennsylvania,  16  Pet.  621,  10  L.  Ed. 
11060;  United  States  v.  Nourse,  9  Pet.  8,  9  L.  Ed.  31;  Randolph's 
I  Case,  2  Brock.  447,  Fed.  Cas.  No.  11,558;  Nourse's  Case,  4  Cranch, 
iC.  C.  151,  Fed.  Cas.  No.  15,901;  Bullock's  Case,  cited  6  Pet.  485, 
jnote. 

i  Tested  by  the  common  and  statute  law  of  England  prior  to  the  emi- 
gration of  our  ancestors,  and  by  the  laws  of  many  of  the  states  at  the 
jtime  of  the  adoption  of  this  amendment,  the  proceedings  authorized  by 
jthe  act  of  1820  cannot  be  denied  to  be  due  process  of  law,  when 
I  applied  to  the  ascertainment  and  recovery  of  balances  due  to  the 
Igovernment  from  a  collector  of  customs,  unless  there  exists  in  the 
^Constitution  some  other  provision  which  restrains  Congress  from 
[authorizing  such  proceedings.  For,  though  "due  process  of  law" 
Igenerally  implies  and  includes,  actor,  reus,  judex,  regular  allegations, 
i opportunity  to  answer,  and  a  trial  according  to  some  settled  course  of 
judicial  proceedings  (2  Inst.  47,  50;  Hoke  v.  Henderson,  15  N.  C. 
!l5,  25  Am.  Dec.  677;  Taylor  v.  Porter,  4  Hill  [N.  Y.]  146,  40  Am. 
jDec.  274;  Vanzant  v.  Waddel,  2  Yerg.  [Tenn.]  260;  State  Bank  v. 
jCooper,  2  Yerg.  [Tenn.]  599,  24  Am.  Dec.  517;  Jones's  Heirs  v. 
'Perry,  10  Yerg.  [Tenn.]  59,  30  Am.  Dec.  430;  Greene  v.  Briggs,  1 
iCurt.  311,  Fed.  Cas.  No.  5,764),  yet  this  is  not  universally  true.  There 
jmay  be,  and  we  have  seen  that  there  are,  cases,  under  the  law  of 
jEngland  after  Magna  Charta,  and  as  it  was  brought  to  this  country 
land  acted  on  here,  in  which  process,  in  its  nature  final,  issues  against 
[the  body,  lands,  and  goods  of  certain  public  debtors  without  any  such 
itrial;   and  this  brings  us  to  the  question,  whether  those  provisions  of 


240  ADMIXISTUATIVE   POWER   AND   ACTION.  (Part    1 

tlie  Constitution  which  relate  to  the  jiuHcial  power  are  incompatible 
with  these  proceedings?     '^     '^     * 

The  power  to  collect  and  disburse  revenue,  and  to  make  all  laws 
which  shall  be  necessary  and  proper  for  carrying  that  power  into 
effect,  includes  all  known  and  appropriate  means  of  effectually  collect- 
ing and  disbursing  that  revenue,  unless  some  such  means  should  be 
forbidden  in  some  other  part  of  the  Constitution.  The  power  has 
not  been  exhausted  by  the  receipt  of  the  money  by  the  collector.  Its 
purpose  is  to  raise  money  and  use  it  in  payment  of  the  debts  of  the 
government,  and,  whoever  may  have  possession  of  the  public  money, 
until  it  is  actually  disbursed,  the  power  to  use  those  known  and  ap- 
propriate means  to  secure  its  due  application  continues. 

As  we  have  already  shown,  the  means  provided  by  the  act  of  1820 
do  not  differ  in  principle  from  those  employed  in  England  from  remote 
antiquity — and  in  many  of  the  states,  so  far  as  we  know  without 
objection — for  this  purpose,  at  the  time  the  Constitution  was  formed. 
It  may  be  added  that  probably  there  are  few  governments  which  do 
or  can  permit  their  claims  for  public  taxes,  either  on  the  citizen  or  the 
officer  employed  for  their  collection  or  disbursement,  to  become  sub- 
jects of  judicial  controversy,  according  to  the  course  of  the  law  of  the 
land.  Imperative  necessity  has  forced  a  distinction  between  such 
claims  and  all  others,  which  has  sometimes  been  carried  out  by  sum- 
mary methods  of  proceeding,  and  sometimes  by  systems  of  fines  and 
penalties,  but  always  in  some  way  observed  and  yielded  to.     *     *     * 

It  is  necessary  to  take  into  view  some  settled  rules.  Though  gen- 
erally, both  public  and  private  wrongs  are  redressed,  through  judi- 
cial action,  there  are  more  summary  extrajudicial  remedies  for  both. 
An  instance  of  extrajudicial  redress  of  a  private  wrong  is  the  re- 
capture of  goods  by  their  lawful  owner ;  of  a  public  wrong,  by  a  pri- 
vate person,  is  the  abatement  of  a  public  nuisance ;  and  the  recovery 
of  public  dues  by  a  summary  process  of  distress,  issued  by  some  public 
officer  authorized  by  law,  is  an  instance  of  redress  of  a  particular 
kind  of  public  wrong,  by  the  act  of  the  public  through  its  authorized 
agents.  There  is,  however,  an  important  distinction  between  these. 
Though  a  private  person  may  retake  his  property,  or  abate  a  nui- 
sance, he  is  directly  responsible  for  his  acts  to  the  proper  judicial 
tribunals.  His  authority  to  do  these  acts  depends  not  merely  on  the 
law,  but  upon  the  existence  of  such  facts  as  are,  in  point  of  law, 
sufficient  to  constitute  that  authority,  and  he  may  be  required,  by 
an  action  at  law,  to  prove  those  facts ;  but  a  public  agent,  who  acts 
]>ursuant  to  the  command  of  a  legal  precept,  can  justify  his  act  by  the 
production  of  such  precept.  He  cannot  be  made  responsible  in  a 
judicial  tribunal  for  obeying  the  lawful  command  of  the  government; 
and  the  government  itself,  which  gave  the  command,  cannot  be  sued 
without  its  own  consent. 

At  the  same  time  there  can  be  no  doubt  that  the  mere  question, 
vvhether  a  collector  of  the  customs  is  indebted  to  the  .United  States. 


Ch.  G)  ADMINISTKATIVE   EXECUTION.  J241 

may  be  one  of  judicial  cognizance.  It  is  competent  for  the  United 
States  to  sue  any  of  its  debtors  in  a  court  of  law.  It  is  equally  clear 
that  the  United  States  may  consent  to  be  sued,  and  may  yield  this 
consent  upon  such  terms  and  under  such  restrictions  as  it  may  think 
just.  Though  both  the  marshal  and  the  government  are  exempt  from 
'suit  for  anything  done  by  the  former  in  obedience  to  legal  process,  still 
Congress  may  provide  by  law  that  both,  or  either,  shall,  in  a  particu- 
lar class  of  cases,  and  under  such  restrictions  as  they  may  think  proper 
to  impose,  come  into  a  court  of  law  or  equity  and  abide  by  its  deter- 
mination. The  United  States  may  thus  place  the  government  upon  the 
same  ground  which  is  occupied  by  private  persons  who  proceed  to  take 
extrajudicial  remedies  for  their  wrongs,  and  they  may  do  so  to  such 
extent,  and  with  such  restrictions,  as  may  be  thought  lit. 

When,  therefore,  the  act  of  1820  enacts  that,  after  the  levy  of  the 
distress  warrant  has  been  begun,  the  collector  may  bring  before  a  dis- 
trict court  the  question  whether  he  is  indebted  as  recited  in  the 
warrant,  it  simply  waives  a  privilege  which  belongs  to  the  government, 
and  consents  to  make  the  legality  of  its  future  proceedings  dependent 
on  the  judgment  of  the  court.  As  we  have  already  stated  in  case  of  a 
private  person,  every  fact  upon  which  the  legality  of  the  extrajudicial 
remedy  depends  may  be  drawn  in  question  by  a  suit  against  him.  The 
United  States  consents  that  this  fact  of  indebtedness  may  be  drawn 
in  question  by  a  suit  against  them.  Though  they  might  have  withheld 
their  consent,  we  think  that,  by  granting  it,  nothing  which  may  not 
j  be  a  subject  of  judicial  cognizance  is  brought  before  the  court. 
I  To  avoid  misconstruction  upon  so  grave  a  subject,  we  think  it  prop- 
er to  state  that  we  do  not  consider  Congress  can  either  withdraw  from 
judicial  cognizance  any  matter  which,  from  its  nature,  is  the  subject 
of  a  suit  at  the  common  law,  or  in  equity,  or  admiralty ;  nor,  on  the 
other  hand,  can  it  bring  under  the  judicial  power  a  matter  which,  from 
its  nature,  is  not  a  subject  for  judicial  determination.  At  the  same 
1  time  there  are  matters,  involving  public  rights,  which  may  be  presented 
in  such  form  that  the  judicial  power  is  capable  of  acting  on  them,  and 
which  are  susceptible  of  judicial  determination,  but  which  Congress 
may  or  may  not  bring  within  the  cognizance  of  the  courts  of  the  United 
States,  as  it  may  deem  proper.  Equitable  claims  to  land  by  the  inhab- 
itants of  ceded  territories  form  a  striking  instance  of  such  a  class  of 
cases;  and  as  it  depends  upon  the  will  of  Congress  whether  a  remedy 
in  the  courts  shall  be  allowed  at  all,  in  such  cases,  they  may  regulate  it 
and  prescribe  such  rules  of  determination  as  they  may  think  just  and 
needful.     *     *     * 

To  apply  these  principles  to  the  case  before  us,  we  say  that,  though 
a  suit  may  be  brought  against  the  marshal  for  seizing  property  under 
such  a  warrant  of  distress,  and  he  may  be  put  to  show  his  justification, 
yet  the  action  of  the  executive  power  in  issuing  the  warrant,  pursuant 
to  the  act  of  1830,  passed  under  the  powers  to  collect  and  disburse  the 
Fr.Adm.Law  —16 


242  ADMINISTRATIVE   POAVEU  AND   ACTION.  (Part    1 

revenue  granted  by  the  Constitution,  is  conclusive  evidence  of  the  facts 
recited  in  it,  and  of  the  authority  to  make  the  levy;  that  though  no 
suit  can  be  brought  against  the  United  States  without  the  consent  of 
Congress,  yet  Congress  may  consent  to  have  a  suit  brought,  to  try 
the  question  whether  the  collector  be  indebted,  that  being  a  subject 
capable  of  judicial  determination,  and  may  empower  a  court  to  act  on 
that  determination,  and  restrain  the  levy  of  the  warrant  of  distress 
within  the  limits  of  the  debt  judicially  found  to  exist. 

It  was  further  urged  that,  by  thus  subjecting  the  proceeding  to  the 
determination  of  a  court,  it  did  conclusively  appear  that  there  was  no 
such  necessity  for  a  summary  remedy,  by  the  action  of  the  executive 
power,  as  was  essential  to  enable  Congress  to  authorize  this  mode  of 
proceeding. 

But  it  seems  to  us  that  the  just  inference  from  the  entire  law  is 
that  there  was  such  a  necessity  for  the  warrant  and  the  commence- 
ment of  the  levy,  but  not  for  its  completion,  if  the  collector  should 
interpose,  and  file  his  bill  and  give  security.  The  provision  that  he  may 
file  his  bill  and  give  security,  and  thus  arrest  the  summary  proceedings, 
only  proves  that  Congress  thought  it  not  necessary  to  pursue  them, 
after  such  security  should  be  given,  until  a  decision  should  be  made 
by  the  court.  It  has  no  tendency  to  prove  that  they  were  not,  in  the 
judgment  of  Congress,  of  the  highest  necessity  under  all  other  circum- 
stances;  and  of  this  necessity  Congress  alone  is  the  judge.     *     *     *  ^ 

3  Accord:  Weiraer  v.  Bunbury,  30  Mich.  201  (1874),  under  Comp.  Laws 
Mich.  1871,  §  1029.  The  provision  is  not  to  be  found  in  the  revision  of  the 
tax  law  of  3885,  No.  153. 

See,  also,  Eve  v.  State,  21  Ga.  50  (1857)  ;  Gwin  v.  Barton,  6  How.  7,  12 
L.  Ed.  321    (1848). 

Laws  111.  1855,  Auditor's  Report  to  the  General  Assembly :  "The  Constitu- 
tionality of  so  much  of  the  revenue  law  as  authorizes  the  auditor  to  issue 
stress  warrants,  with  orders  to  sell  the  property,  of  delinquent  collectors,  etc., 
has  been  questioned,  and  as  it  has  but  little,  if  any,  advantage  over  the  regu- 
lar mode  of  proceeding  in  the  courts  against  such  collectors,  I  respectfully 
suggest  its  repeal."  The  provision  was  omitted  from  the  revenue  law  of 
1872.  See,  now,  Illinois  Revenue  Act  (Hurd's  Rev.  St.  1910,  c.  120)  §§  245, 
250. 

See  Century  Digest,  Taxation,  §§  1095-1101. 

Administrative  imposition  of  penalties  for  fraudulent  evasion  of  taxes,  see 
Doll  V.  Evans,  Fed.  Cas.  No.  3969  (1872).  People  v.  Nat.  Bank,  etc.,  123  Cal. 
53,  .55  Pac.  685,  45  L.  R.  A.  747,  69  Am.  St.  Rep.  32  (1898)  ;  Boyer  v.  Jones, 
14  Ind.  354   (1860);    McCormick  v.  Fitch,  14  Minn.  252,  Gil.  185   (1869). 

Tariff  Bill  1846,  §  9,  provided  that  in  all  cases  in  which  the  appraisers 
should  suspect  that  goods  were  fraudulently  undervalued  the  government 
might  seize  the  goods,  and  sell  them  at  public  auction,  and  after  paying  the 
consignee  the  declared  value  with  5  per  cent,  in  addition,  cover  the  balance  in- 
to the  treasury.  This  passed  the  House,  but,  being  denounced  as  unconsti- 
tutional, was  on  motion  of  Webster,  struck  out  by  the  Senate.  Stanwood, 
American  Tariff  Controversies,  II,  79. 


Cll.  6)  ADMINISTRATIVE   EXECUTION.  243 


SECTION    30.— ABATEMENT    OF    NUISANCES— RECOGNI- 
TION  AND   VALIDITY   OF   POWER 


NEFF  V.  PADDOCK  et  a!. 

(Supreme  Court  of  Wisconsin,   1870.     2G   Wis.  54G.) 

Trespass  quare  clausum  for  the  removal  of  plaintiff's  fence.  De- 
fense, that  the  locus  was  part  of  a  well-known  and  long-traveled 
highway,  upon  which  plaintiff  had  willfully  built  his  fence,  and  that 
defendants  removed  it  by  direction  of  the  town  board  of  supervisors, 
doing  no  unnecessary  damage. 

Cole,  J.*  *  *  *  Xhe  court  in  effect  instructed  the  jury  that  if 
they  found  that  the  fence  erected  by  the  plaintiff  in  the  highway  ex- 
tended more  than  six  feet  from  the  East  line  of  the  road  into  the 
same,  so  as  to  endanger  or  inconvenience  travel  thereon,  then  it  was 
the  duty  of  the  supervisors  to  cause  the  fence  to  be  removed,  doing  no 
unnecessary  damage,  and  that  such  action  on  their  part  was  lawful. 
The  plaintiff  removed  his  fence  into  the  middle  of  the  highway,  and  by 
so  doing  committed  a  nuisance.  It  was  the  duty  of  the  supervisors  to 
cause  the  fence  to  be  removed  summarily.  The  public  have  the  right 
to  an  uninterrupted  passage  along  the  highway  for  themselves  and 
carriages ;  and  it  is  the  clear  legal  duty  of  the  supervisors  to  cause  all 
obstructions  to  be  removed  which  seriously  interfere  with  or  impede 
the  exercise  of  this  right.  It  would  be  a  most  serious  defect  in  the  law 
if  in  the  case  of  a  palpable  obstruction  of  a  highway,  which  interrupts 
its  use  and  discommodes  and  endangers  the  safety  of  travelers,  the 
public  authorities  had  not  the  right  to  remove  it  without  delay.  We 
do  not  think  that  such  is  the  law  in  this  state.  Lemon  v.  Hay  don, 
13  Wis.  159 ;  Wyman  v.  State,  Id.  663 ;  Wetmore  v.  Tracy,  14  Wend. 
(N.  Y.)  250,  28  Am.  Dec.  525.  *  *  *  5 
1 
I       4  Only  a  portion  of  the  opinion  of  Cole,  J.,  is  printed. 

5  Wetmore  v.  Tracy,  14  Wend.  (N.  Y.)  250,  28  Am.  Dec.  525  (1835),  was  a 
'  case  of  abatement  by  private  individuals.  The  doctrine  of  the  earlier  New 
1  York  cases  (Hart  v.  Mayor  of  Albany,  9  Wend.  [N.  Y.l  589,  24  Am.  Dec.  165 
i  [1832];  Meeker  v.  Van  Rensselaer,  15  Wend.  [X.  Y.]  397  [18.3G]),  that  any  in- 
j  dividual  may  abate  a  public  nuisance,  is  changed  by  Ft.  Plain  Bridge  Co. 
I  V.  Smith,  30  N.  Y.  44,  62  (1864),  which  holds  that  no  one  has  the  right  to 
I  abate  a  public  nuisance,  unless  he  has  himself  sustained  some  damages  not 
;  sustained  by  the  rest  of  the  community. 

j  Blackstone,  bk.  3,  c.  1,  says :  "If  a  new  gate  be  erected  across  the  public 
I  highway,  which  is  a  common  nuisance,  any  of  the  king's  subjects  passing  that 
J  way  may  cut  it  down  and  destroy  it,"  and  "such  nuisance  may  be  abated — 
;  that  is,  taken  away  or  removed — by  the  party  aggrieved  thereby,  so  as  he 
,  commits  no  riot  in  the  doing  of  it." 

I  So  especially  there  is  no  common-law  right  of  summary  abatement  by  in- 
I  dividuals,  where  the  nuisance  consists  only  in  the  violation  of  the  law,  as, 
e.  g.,  the  illegal  sale  of  liquor,  see  Brown  v.  Perkins,  12  Gray    (Mass.)   89 


244  ADMINISTRATIVK    POWKR   AND   ACTION.  (Part    1 

HUBBELL  V.  GOODRICH  et  al. 
(Supreme  Court" of  Wisconsin,  1875.     37  Wis.  84.) 

Appeal  from  the  circuit  court  for  Sauk  coiuity. 

This  action  is  to  recover  damages  for  an  alleged  trespass  by  the 
defendants  in  entering  upon  the  lands  of  the  plaintiff  and  taking  down 
and  removing  a  fence.  The  answer  avers  that  the  locus  in  quo  is  a 
public  highway;  that  the  defendant  Goodrich,  who  was  then  over- 
seer of  highway  in  the  road  district  in  which  such  lands  are  situated, 
entered  upon  the  plaintiff's  said  land,  and,  with  the  assistance  of  the 
other  defendant,  removed  such  fence  out  of  the  highway,  doing  no  un- 
necessary damage ;  and  that  he  removed  the  fence  by  order  of  the 
supervisors  of  the  proper  town. 

The  testimony  given  on  the  trial  of  the  action  tends  to  prove  these 
averments  of  the  answer,  and  also  tends  to  prove  that  the  fence  was 
an  obstruction  to  travel  on  the  alleged  highway. 

The  jury  found  for  the  defendant,  a  motion  for  a  new  trial  was 
denied,  and  judgment  against  the  plaintiff  for  costs  was  duly  entered. 
The  plaintiff  appealed  from  such  judgment. 

Lyon,  J.  1.  The  supervisors  are  charged  by  law  with  the  care  of 
the  highways  in  their  respective  towns,  and  it  is  their  duty  to  give 
directions  for  repairing  the  same,  and  from  time  to  time  to  require 
overseers  of  highways  therein  to  perform  their  duties.  Rev.  St.  c.  19, 
§  1  (Tayl.  St.  p.  477,  §  1).  The  supervisors  have  power,  and  it  is 
their  duty,  to  cause  the  summary  removal  of  any  public  nuisance  found 
in  any  highway  under  their  jurisdiction.  Neff  v.  Paddock,  26  Wis. 
546.  And  to  this  end  they  may  require  the  overseer  in  whose  district 
it  is  located  so  to  remove  the  same. 

Any  obstruction  in  or  encroachment  upon  a  highway,  which  unneces- 
sarily impedes  or  incommodes  the  lawful  use  of  such  highway  by  the 
public,  is  a  public  nuisance,  and  may  be  summarily  abated.  Angell 
on  Highways,  223,  274. 

2.  The  supervisors  also  have  the  power,  as  we  think,  to  cause  the 
summary  removal  of  any  structure  unlawfully  and  willfully  placed 
within  the  limits  of  a  highway  by  any  person,  although  the  same  is  not 
a  public  nuisance.  As  to  the  signification  of  the  word  "willfully," 
as  here  used,  see  State  v.  Preston,  34  Wis.  675. 

(1858)  ;  Earp  v.  Lee,  71  111.  192  (1873)  ;  Gray  v.  Ayres,  7  Dana  (Ky.)  375, 
32  Am.  Dec.  107  (1838). 

Wliere  the  right  of  any  individual  to  abate  a  nuisance  is  recognized,  it 
may  be  exercised,  a  fortiori,  by  an  officer.  Fields  v.  Stokley,  99  Pa.  306,  44 
Am.  Rep.  109  (1882);  Baumgartner  v.  Hasty,  100  Ind.  575,  50  Am.  Rep.  830 
(1885). 

But  such  abatement  must  be  unaccompanied  by  a  breach  of  the  peace.  Rex 
v.  Rosewell,  2  Salk.  459  (1699);   Day  v.  Day,  4  Md.  262  (1853). 

See  F.  J.  Goodnow,  Summary  Abatement  of  Nuisances,  Columbia  Law  Re- 
view, II,  203. 


Ch.  6)  ADMINISTRATIVE   EXECUTION.  245 

3.  But  where  the  obstruction  or  encroachment  is  not  a  public 
nuisance,  and  was  not  willfully  placed  in  the  highway  (as  where  it 
was  placed  there  by  inadvertence  or  carelessness,  without  any  in- 
tention to  obstruct  the  highway),  we  are  of  the  opinion  that  the 
supervisors  have  no  power  to  cause  the  summary  removal  thereof. 
The  remedy  given  by  the  statute  must  be  resorted  to  in  such  a  case. 
Rev.  St.  c.  19,  §§  102  to  108  (Tayl.  St.  p.  508,  §§  138  to  144)  ; 
Wyman  v.  State,  13  Wis.  GG3. 

The  learned  circuit  judge  instructed  the  jury  that  the  defendants 
were  not  liable  for  removing  such  portion  of  the  fence  as  was  in  a 
public  highway,  and  that  if  all  of  the  fence  removed  by  them  was 
within  the  highway  the  defendants  were  entitled  to  a  verdict.  This 
instruction  is  not  qualified  in  any  manner,  and  it  entirely  ignores  the 
principle  last  above  stated.  Under  it  the  action  might  be  defeated  even 
though  the  fence  was  not  a  public  nuisance,  and  was  not  willfully 
placed  there  by  the  plaintiff ;  in  which  case,  as  we  have  seen,  the 
town  authorities  had  no  power  to  remove  it  summarily.  We  do  not 
know  but  the  verdict  was  predicated  upon  precisely  such  a  state  of 
facts;  for  the  testimony  does  not  conclusively  prove  either  that  the 
fence  was  a  public  nuisance,  or  that  it  was  willfully  placed  there  by  the 
plaintiff. 

It  was  error,  therefore,  to  give  the  above  instruction  ;  and  be- 
cause the  error  may  have  injured  the  plaintiff,  there  must  be  another 
trial. 

Judgment  reversed,  and  new  trial  awarded.*^ 

6  The  English  authorities  are  silent  as  to  the  power  of  officers,  such  as 
surveyors  of  highways,  etc..  to  remove  or  abate  nuisances,  apart  from  stat- 
ute, without  judicial  order  or  conviction.     See  Shaw's  Parish  Law,  IT.jO. 

A  sheriff  or  constable  seems  to  have  no  such  power,  by  virtue  of  his  of- 
fice, by  the  common  law. 
The  statutes  were  slow  in  granting  such  power.     See  13  Geo.  III.   c.  78. 
i    §  12  (only  after  20  days'  notice),  and  5  &  6  William  IV,  c.  50,  §§  09.  73.     See 
2  Ell.  &  Bl.  748;    also  57  Geo.  Ill,  c.  29   (Michel  Angelo  Taylor's  Act,  relat- 
ing to  London,  a  private  act)  §  G5. 
For  American  legislation,  see  the  following: 
Prov.  Laws  Mass.  1693-94,  c.  G   (Highways)  : 
j        "Section  i.     *     *     *     rj^ji^  surveyors  are  hereby  empowered  to   cut  down, 
dig  up.  and  remove,  as  well  all  sorts  of  trees,  bushes,  stones,  fences,  rails, 
!    gates,  inclosures.  or  other  thing  or  things,  as  may  any  ways  straighten,  hurt, 
I    hinder,  or  incommode  the  highways." 

'  "Sec.  5.  If  any  person  *  *  *  shall  erect  or  set  up  any  gate,  rails,  or 
I  fence  upon  or  across  any  highway  or  country  road,  or  continue  any  such  road 
j  to  the  annoyance  and  incumbrance  of  the  same  (other  than  such  as  shall  be 
I  allowed  by  the  court  of  quarter  sessions  within  the  county),  it  shall  be 
I  deemed  a  common  nuisance,  and  it  shall  be  lawful  for  any  person  or  persons 
;  to  pull  down  and  remove  the  same." 
I        1  Rev.  St.  X.  Y.  1829,  p.  521 : 

j  "Sec.  103.  In  every  case  where  a  highway  shall  have  been  laid  out,  and  the 
I  same  has  been  or  shall  be  encroached  upon  by  fences,  *  *  *  the  commis- 
j  sloners  of  highways  *  *  *  shall,  if  in  their  opinion  it  be  deemed  neces- 
!  sary,  order  such  fences  to  be  removed,  so  that  such  highway  may  be  of  the 
j  breadth  originally  intended.  The  commissioners  making  the  order  shall  cause 
I  the  same  to  be  reduced  to  writing  and  signed.  They  shall  also  give  notice 
in  writing  to  the  occupant  of  the  land,  to  remove  such  fences  within  sixty 


246  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

KING  V.   DAVENPORT,   Executor. 

(Supreme  Court  of  Illinois,  1881.     98  111.  305,  38  Am.  Rep.  89.) 

Mr.  Justice  Sheldon  delivered  the  opinion  of  the  court.' 
The  city  of  Jacksonville,  in  this  state,  having  power,  by  ordinance, 
to  establish  fire  limits  and  to   declare   the  building  or   repairing  of 
buildings    with   combustible  materials   within    the    fire    limits    a  nui 
sance,  its  city  council  did,  by  ordinance,  establish  fire  limits,  and  en 
acted  that  any  building  built  or  repaired  with  other  than  fire-proof 
material,  or  any  roof  or  gutter  placed  on  any  building,  the  outer  sur- 
face of  which  was  made  with  materials  other  than  fire-proof,  if  within 
the  fire  limits,  and  done  without  permission,  should  be  deemed  a  nui 
sance,  and  that  if  the  offender,  upon  reasonable  notice,  failed  to  re- 
move such  wooden  building,  or  wooden  part  of  such  building,  the  city 
marshal,  upon  the  written  direction  of  the  mayor,  should  "remove  or 
tear  down  such  building,  or  such  part  thereof  as  may  be  necessary, 
The  ordinance  further  provided,  that  the  offender  should  be  subject  to 
a  fine  of  $100  for  each  week  he  failed  to  remove  such  wooden  build- 
ing, or  wooden  part  thereof,  and  that  if  the  city  caused  the  removal 
the  expense  of  the  removal  might  be  recovered  of  the  offender.     The 
plaintiff's  testatrix  violated  this  ordinance  by  taking  oft"  an  old  and 
out  of  repair  shingle  roof  from  her  building,  situated  within  the  fire 
limits,  and  putting  thereon,  without  permission,  a  new  shingle  roof. 
She  failing  to  remove  the  same  upon  due  notice,  the  roof  was  removed 
by  the  city  marshal,  in  conformity  with  the  ordinance. 

She  brought  this  suit  of  trespass  against  the  mayor  and  marsh 
of  the  city  for  the  removing  of  the  roof,  and  dying  since  the  brin 
ing  of  the  suit,  her  executor  was  substituted  as  plaintiff.     The  de^| 
fendants  justified  under  the  ordinance,  and  on  trial  by  the  court,  with- 
out  a  jury,  judgment  was   rendered  against  them   for  $175,   which 
on  appeal  to  the  Appellate  Court  for  the  Third  District,  was  afiirmed, 

days.  Every  such  order  and  notice  shall  specify  the  breadth  of  the  road  orig- 
inally intended,  the  extent  of  the  encroachment,  and  the  place  or  places  in 
which  the  same  shall  be. 

"Sec.  104.  If  such  removal  shall  not  be  made,  within  sixty  days  after  the 
service  of  such  notice,  the  occupant  to  whom  the  notice  shall  be  given  shall 
forfeit  the  sum  of  fifty  cents  for  every  day,  after  the  expiration  of  that  time 
for  which  such  fences  shall  continue  unremoved." 

In  Wetmore  v.  Tracy,  14  Wend.  250,  28  Am.  Dec.  525  (1835),  this  was  held 
not  to  supersede  the  common-law  remedy  by  abatement. 

The  following  words  were  added  to  this  section  by  chapter  300  of  Laws 
of  1840: 

"And  the  commissioners  of  highways  may  remove  or  cause  to  be  removed 
such  encroachment,  and  the  occupant  of  the  premises  shall  pay  to  the  com- 
missioners of  highways  all  reasonable  charges  therefor." 

Revised  Municipal  Code  of  Chicago,  §  1862: 

"Sec.  18G2.  The  commissioner  of  public  works  may  direct  the  removal  of 
any  article  or  thing  whatsoever,  which  may  encumber  or  obstruct  any  street, 
avenue  or  alley  in  the  city." 

7  Only  a  portion  of  the  opinion  of  Sheldon,  J.,  is  printed. 


Ch.  6)  ADMINISTRATIVE   EXECUTION.  247 

and  then  the  present  appeal  taken,  the  proper  certificate  having  been 
made  to  authorize  it. 

The  sole  question  here  presented  is  upon  the  validity  of  the  ordi- 
nance. 

By  its  charter  the  following-  legislative  power  is  delegated  to  the 
city  of  Jacksonville : 

"The  city  council,  for  the  purposes  of  guarding  against  the  calami- 
ties of  fire,  shall  have  power  to  prohibit  the  erection,  placing  or  re- 
pairing of  wooden  buildings  within  the  limits  prescribed  by  them, 
without  their  permission,  and  direct  and  prescribe  that  all  buildings 
within  the  limits  prescribed  shall  be  made  or  constructed  of  fire-proof 
materials,  and  to  prohibit  the  rebuilding  of  wooden  buildings ;  to  de- 
clare all  dilapidated  buildings  to  be  a  nuisance,  and  to  direct  the  same 
to  be  removed,  repaired  or  abated,  in  such  manner  as  they  shall  pre- 
scribe and  direct ;  to  declare  all  wooden  buildings  which  they  may 
deem  dangerous  to  contiguous  buildings,  or  in  causing  or  promoting 
fires,  to  be  nuisances,  and  to  require  and  cause  the  same  to  be  re- 
moved or  abated  in  such  manner  as  they  shall  prescribe. 

''And,  generally,  to  establish  such  regulations  for  the  prevention 
and  extinguishment  of  fires  as  the  city  council  may  deem  expedient. 

"The  city  council  shall  have  power  to  pass,  publish,  and  repeal  all 
ordinances,  rules  and  police  regulations,  not  contrary  to  the  Con- 
stitution and  laws  of  the  United  States  and  of  this  state,  *  *  *  or 
proper  to  carry  into  efifect  the  powers  vested  by  this  act  in  the  cor- 
poration ;  to  determine  what  shall  be  a  nuisance  and  provide  for  the 
punishment,  removal  and  abatement  of  the  same;  and  also  to  punish 
violations  of  its  ordinances  by  fines,  penalties  and  imprisonment,"  etc. 

"To  define  and  declare  what  shall  be  nuisances,  and  authorize  and 
direct  the  summary  abatement  thereof." 

There  is  here  given  ample  authority,  we  think,  for  the  passage  of 
the  ordinance  in  question. 

The  inquiry  then  must  be,  whether  the  enactment  of  such  a  law  is 
within  the  competency  of  legislative  power.  Unwholesome  trades, 
slaughterhouses,  operations  offensive  to  the  senses,  the  deposit  of 
powder,  the  application  of  steam  power  to  propel  cars,  the  building 
with  combustible  materials,  and  the  burial  of  the  dead,  may  all,  says 
Chancellor  Kent,  be  interdicted  by  law  in  the  midst  of  dense  masses 
of  population,  on  the  general  and  rational  principle  that  every  person 
ought  so  to  use  his  property  as  not  to  injure  his  neighbors,  and  that 
private  interests  must  be  made  subservient  to  the  general  interests 
of  the  community.  2  Kent,  Com.  340.  The  right  to  restrain  owners 
of  land  in  towns  from  erecting  wooden  buildings,  except  under  cer- 
tain restrictions,  has  never  been  doubted,  or,  if  it  has  been,  the  doubt 
has  long  since  been  removed.  Commonwealth  v.  Tewksbury,  11 
Mete.  (Mass.)  58.  Such  regulation  is  but  "a  just  restraint  of  an  in- 
jurious use  of  property,  which  the  Legislature  have  authority  to 
make."     Id.   59.     But  the  particular  respect  in  which  the  ordinance 


218  ADMINISTRATIVE   POWEU  AND   ACTION.  (Part    1 

is  assailed  is  that  it  authorizes  the  abatement  of  the  nuisance  sum- 
marily, without  any  prior  adjudication  of  the  right  to  exercise  the 
power. 

The  summary  abatement  of  nuisances  is  a  remedy  which  has  ever 
existed  in  the  law,  and  its  exercise  is  not  regarded  as  in  conflict  with 
constitutional  provisions  for  the  protection  of  the  rights  of  private 
property.  Blackstone,  in  his  classification  of  remedies  by  the  act  of 
a  party,  says :  "The  fourth  species  of  remedy  by  the  mere  act  of  the 
party  injured  is  the  abatement  or  removal  of  nuisance"  (3  Black. 
Com.  5),  and  that  "the  reason  why  the  law  allows  this  private  and 
summary  method  of  doing  one's  self  justice  is  because  injuries  of 
this  kind,  which  obstruct  or  annoy  such  things  as  are  of  daily  con- 
venience for  use,  require  an  immediate  remedy,  and  cannot  wait  the 
slow  progress  of  the  ordinary  forms  of  justice."     =i^     *     * 

There  can  be  no  doubt,  it  seems  to  us,  that  the  ordinance  in  question 
was  a  police  regulation,  proper,  and  made  in  good  faith,  "for  the 
purpose  of  guarding  against  the  calamities  of  fire,"  in  a  populous 
neighborhood;  and  we  must  regard  it  as  an  entirely  reasonable  reg- 
ulation. There  is  no  more  frequent  or  admittedly  proper  exercise 
of  the  police  power  than  that  of  the  prohibition  of  the  erection  of 
buildings  of  combustible  materials  in  the  populous  part  of  a  town, 
and  the  only  means  of  making  such  prohibition  effectual  is  by  sum- 
mary abatement.  Every  moment's  delay  in  the  removal  of  the  nui- 
sance is  constant  exposure  to  danger.  Before  any  judicial  inquiry 
and  hearing  could  be  had  in  the  matter,  the  whole  evil  sought  to  be 
guarded  against  might  be  produced. 

The  imposition  of  a  penalty  would  but  punish  the  offender ;  it 
would  not  remove  the  source  of  danger.  This  latter  is  the  thing 
which  the  necessity  of  the  case  requires,  and  immediate  abatement 
is  the  only  competent  remedy.  It  is  admitted  by  appellee's  counsel, 
an  admission  they  are  compelled  to  make  under  the  law,  that  if  the 
erection  were  a  nuisance  at  common  law  the  city  authorities  might 
abate  it.  But  what  is  a  nuisance  at  common  law?  Blackstone's  def- 
inition is,  whatever  unlawfully  annoys  or  doth  damage  to  another 
is  a  nuisance.  The  construction  of  this  wooden  roof  was  an  unlaw- 
ful thing,  made  so  by  ordinance  prohibiting  its  construction.  That 
it  was,  in  its  nature,  injurious,  and  a  source  of  constant  danger  in  a 
populous  place,  experience  and  the  general  prevalence  of  this  sort  of 
legislation  we  are  considering  teach  lis.  Such  was  the  view  of  the 
Legislature  in  the  matter,  that  by  the  charter  of  this  city,  for  the 
purpose  of  guarding  against  the  calamities  of  fire,  they  authorized 
the  city  council  to  prohibit  the  erection  or  repairing  of  wooden  build- 
ings within  the  fire  limits  they  might  prescribe,  and  to  declare  such 
buildings  to  be  nuisances,  and  cause  the  same  to  be  abated  as  they 
should  direct. 

In  pursuance  of  such  authority,  the  city  council  established  fire 
limits,  and  by  ordinance  declared  any  such  roof  as  the  one  in  ques- 


Ch.  6)  ADMINISTRATIVE   EXECUTION.  249 

tion,  which  should  be  put  upon  a  building  within  such  limits,  to  be  a 
nuisance,  and  required  the  city  marshal,  under  an  order  from  the 
mayor,  to  remove  the  same. 

Such  an  ordinance,  enacted  in  pursuance  of  legislative  authority, 
has  the  force  of  a  statute,  and  may  be  viewed  as  though  such,  in  the 
treatment  of  the  present  subject.  We  have  here,  then,  what  is  a 
nuisance  in  fact,  that  which  is  declared  to  be  such  by  ordinance — de- 
termined by  law  to  be  a  nuisance — and  why  may  not  the  remedy  by 
abatement,  under  the  ordinance,  belong  to  it  as  well  as  in  the  case 
of  any  nuisance  at  the  common  law?  The  reason  for  it  is  equally 
strong.  As  before  said,  there  is  no  other  competent  remedy  to  meet 
the  necessity  of  the  case. 

Further,  the  charter  authorizes  the  provision  for  summary  abate- 
ment, and  the  ordinance  consequently  gives  it.  How  is  a  nuisance 
to  be  abated  by  the  city  except  by  a  summary  proceeding?  The 
term  itself  imports  such  a  proceeding.  This  case  is  quite  different 
from  Yates  v.  Milwaukee,  10  Wall.  497,  19  L.  Ed.  984,  cited  by  ap- 
pellee's counsel,  where  the  court  held  that  the  mere  declaration  of 
the  city  council  could  not  make  an  existing  structure  a  nuisance  un- 
less it  had  in  fact  that  character,  and  that  it  was  not  allowable  "that 
a  municipal  corporation,  without  any  general  laws,  either  of  the  city 
or  of  the  state,  within  which  a  given  structure  can  be  shown  to  be  a 
nuisance,  can,  by  its  mere  declaration  that  it  is  one,  subject  it  to  re- 
moval by  any  person  supposed  to  be  aggrieved,  or  even  by  the  city  it- 
self." The  thing  here,  we  regard,  had  the  character  of  a  nuisance. 
It  was  constructed  in  the  face  of  a  general  ordinance  of  the  city,  long 
before  passed,  prohibiting  any  such  structure,  and  declaring  it  to  be  a 
nuisance  and  subject  to  be  abated  as  such.  It  was  a  reasonable  reg- 
ulation for  the  future,  and  plaintiff's  defiant  disobedience  of  it  leaves 
her  no  reason  for  complaint  of  the  declared  consequences.     *     *     * 

The  judgment  of  the  Appellate  Court  is  reversed,  and  the  cause 
remanded  for  further  proceedings  in  conformity  with  this  opinion. 

Judgment  reversed. 

Walker,  J.  I  am  unable  to  concur  in  either  the  reasoning  or 
conclusion  announced  in  this  opinion. 


BALDWIN  et  al.  v.  SMITH. 
(Supreme  Court  of  Illinois,  1876.     82  111.  162.) 

Mr.  Justice  Breese  delivered  the  opinion  of  the  court. 

This  was  trespass  with  force  and  arms,  brought  to  the  White  cir- 
cuit court  by  Michael  Smith,  plaintiff,  and  against  the  town  of  Gray- 
ville  and  William  F.  Baldwin,  the  president,  and  Benjamin  Batson 
and  others,  members  of  the  town  council,  and  Isaac  H.  Hamilton,  con- 
stable of  the  town  of  Grayville,  defendants. 


250  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

The  defendants  pleaded  the  general  issue,  and  several  special  pleas, 
to  which  latter  demurrers  were  sustained,  and  the  cause  tried  upon 
the  general  issue.  The  jury  found  for  the  plaintiff,  assessing  his 
damages  at  $330,  whereupon  a  motion  for  a  new  trial  was  made  by 
the  defendants.  Thereupon  the  plaintifif  remitted  $70,  and  judgment 
was  rendered  for  $150,  to  reverse  which  the  defendants,  except  W. 
Wirt  Gray  and  Henry  Butler,  appeal,  and  assign  various  errors. 

It  is  unnecessary  to  consider  all  the  errors  assigned,  or  go  into  a 
critical  examination  of  the  special  pleas  adjudged  bad,  as  the  whole 
controversy  is  confined  within  a  narrow  compass. 

It  appears  the  plaintiff  had  been  duly  licensed,  by  the  proper  au- 
thorities of  the  town  of  Grayville,  to  retail  spirituous  liquors — in 
other  words,  to  keep  a  dramshop — for  which  he  had  paid  $300  into 
the  town  treasury,  and  had  "complied  with  the  laws  and  ordinances." 

There  is  no  condition  in  the  license,  and  no  reference  to  any  ordi- 
nance of  the  town,  authorizing  its  revocation  for  cause,  yet  it  must 
be  held  to  have  been  granted  subject  to  such  ordinances  of  the  town 
as  had  a  legal  existence  at  the  time  the  same  was  granted,  and  such 
as  were  within  the  competency  of  the  town  authorities  to  enact. 

An  ordinance  of  the  town,  entitled  "License,  Groceries,"  is  set  up 
in  one  or  more  of  the  special  pleas,  on  three  sections  of  which,  namely, 
sections  3,  3  and  4,  the  defense  is  based. 

Section  3  provides  for  the  execution  of  a  bond  by  the  applicant  for 
a  license,  conditioned  that  he  will  keep  an  orderly  house,  and  ob- 
serve the  conditions  contained  in  section  3,  which  provides  that  li- 
cense should  be  granted  only  on  the  express  condition  that  the  ap- 
plicant should  keep  an  orderly  house,  permit  no  gaming  or  playing 
with  cards,  and  should  not  sell,  give,  or  otherwise  dispose  of  to  any 
minor  under  sixteen  years  of  age,  liquor  of  any  kind.  And  by  section 
4,  on  which  section  the  controversy  turns,  it  is  provided  that  the  town 
council,  being  satisfied,  upon  complaint  or  otherwise,  that  the  third  sec- 
tion, or  any  clause  thereof,  has  been  violated,  shall,  in  addition  to  the 
forfeiture  and  collection  of  the  bond,  revoke  the  license  of  such  of- 
fender or  ofifenders;  and  it  shall  be  the  duty  of  the  town  constable 
to  immediately  close  up  the  grocery  of  such  offender  or  ofifenders. 

The  town  council,  it  would  appear,  having  become  satisfied,  "by 
complaint  or  otherwise,"  that  the  third  section  of  the  ordinance,  or 
some  part  thereof,  had  been  violated  by  the  licensee,  entered  into  an 
investigation  of  the  matter,  having  the  .plaintifif  before  them,  who 
was  examined  as  a  witness,  and  they  found  him  guilty,  revoked  his 
license,  and  ordered  the  town  constable  to  close  the  saloon,  which 
he  did  by  turning  out  the  clerk  then  in  possession,  locking  the  doors 
and  taking  the  key,  thus  assuming  control  over  the  premises. 

Now,  the  only  question  is,  had  the  town  council,  imder  this  section 
of  the  ordinance,  the  power  to  do  the  acts,  by  and  through  the  town 
constable,  they  admit,  by  their  pleas,  they  did  do? 

We  are  satisfied  they  had  no  such  power.     Admitting  they  could 


Ch.  6)  ADMINISTRATIVE   EXECUTION.  251 

revoke  the  license,  and  did  revoke  it,  there  their  power  ended.  They 
had  no  right,  manu  forti,  to  oust  the  owner  from  the  premises,  and 
thus  deprive  him  of  the  use  and  control  of  his  property,  nor  was  there 
any  necessity  for  so  acting-.  The  revocation  of  the  license  was,  virtual- 
ly, closing  the  doors  of  the  saloon  as  to  the  traffic  in  liquors.  Should 
the  keeper  of  the  saloon,  after  the  revocation,  continue  to  sell  liquor 
as  under  the  license,  he  would  be  subject  to  indictment  and  punish- 
ment under  the  law. 

The  town  council  had  no  more  power  to  authorize  the  town  con- 
stable to  do  the  acts  which  he  admits  he  did  do  than  to  authorize 
him  to  imprison  the  supposed  offender,  at  his  discretion.  The  in- 
vestigation by  the  town  council  amounts  to  nothing,  as  that  was  not 
a  judicial  tribunal,  empowered  to  make  such  investigations,  and  con- 
demn and  punish.  Such  proceedings  as  we  find  in  this  record  are 
violative  of  the  elementary  principles  of  our  Constitution  and  laws, 
which  give  to  any  man  the  right  of  trial  by  a  jury,  and  in  a  court  of 
competent  jurisdiction.  His  guilt  cannot  be  inquired  into  by  a  town 
council,  and  their  decree  enforced  by  a  town  constable,  with  im- 
punity. The  party  charged  with  a  violation  of  the  ordinance  had  a 
right  to  be  heard  in  court,  and  to  receive  its  judgment. 

The  defense  being  based  on  this  section  of  the  ordinance,  and  that 
being  invalid,  the  demurrers  to  the  pleas  setting  that  up  as  a  defense 
were  properly  sustained. 

This  opinion  proceeds  upon  the  ground  that  the  charter  of  the 
town  of  Grayville  conferred  authority  to  pass  the  ordinance  in  ques- 
tion. The  charter  is  not  before  us  for  examination;  but.  admitting 
the  power,  so  much  of  it  as  empowered  the  authorities  to  close  the 
saloon  by  force  must  be  held  invalid,  for  the  reasons  given.  Au- 
thority to  revoke  a  license  to  sell  liquor  does,  on  being  executed,  to 
all  intents  and  purposes  close  the  saloon  as  to  that  traffic,  but  confers 
no  authority  to  deprive  a  man,  summarily,  of  his  property  or  of  its 
use. 

We  are  satisfied  no  defense  to  this  action  was  set  up  in  any  of  the 
special  pleas  interposed  by  any  of  these  parties.  The  saloon  should 
be  adjudged  a  nuisance,  before  it  could  be  abated.  There  must  first 
be  legal  proceedings.     Earp  v.  Lee  et  al.,  71  111.  193.     *     *     * 

Finding  no  error  in  the  record,  the  judgment  is  affirmed. 

Judgment  affirmed.^ 

8  Part  of  the  opinion  is  omitted. 

See.  also.  Eddy  v.  Board  of  Healtii,  10  Phila.  (Pa.)  94  (1873). 

As  to  summary  abatement,  destruction,  etc.,  under  the  police  power,  see. 
further,  Salem  v.  Eastern  R.  Co.,  98  Mass.  431,  96  Am.  Dec.  650  (1868),  ante, 
p.  150 ;  IMiller  v.  Hortou,  152  Mass.  540,  26  N.  E.  100.  10  L.  R.  A.  116,  23  Am. 
St.  Rep.  S."0  (1801),  post,  p.  .535;  Raymond  v.  Fish,  51  Conn.  SO,  50  Am.  Rep. 
3.  post,  p.  313;  Deems  v.  Baltimore,  80  Md.  164,  30  Atl.  648.  26  L.  R.  A. 
541.  45  Am.  St.  Rep.  339  (1894)  ;  North  American  Cold  Storage  Co.  v.  Chi- 
cago, 211  U.   S.  306,  29  Sup.   Ct.  101,  53  L.  Ed.  195    (190S),  post,  p.  256. 


ADMINISTRATIVE   TOWEU  AND   ACTION.  (Part    1 


SECTION  31.— SAME— NOTICE  BEFORE  ABATEMENT 


COOPER  V.  BOARD  OF  WORKS  FOR  WANDSWORTH 
DISTRICT. 

(Court  of  Common  Pleus,  1803.     14  C.  B.  [N.  S.]  ISO.) 

This  was  an  action  for  pulling  down  a  house  of  the  plaintiff  which 
was  in  the  course  of  erection. 

The  defendants  justified  their  act  under  the  seventy-sixth  section 
of  the  Metropolis  Local  Management  Act,  1855,  18  &  19  Vict.  c.  120, 
which  enacts  that,  "before  beginning  to  lay  or  dig  out  the  foundation 
of  any  new  house  or  building  within  any  such  parish  or  district,  or 
to  rebuild  any  house  or  building  therein,  and  also  before  making  any 
drain  for  the  purpose  of  draining  directly  or  indirectly  into  any  sewer 
under  the  jurisdiction  of  the  vestry  or  board  of  or  for  any  such  par- 
ish or  district,  seven  days'  notice  in  writing  shall  be  given  to  the 
vestry  or  board  by  the  person  intending  to  build  or  rebuild  such  house 
or  building  or  to  make  such  drain ;  *  *  *  and  the  vestry  or  dis- 
trict board  shall  make  their  order  in  relation  to  the  matters  aforesaid, 
and  cause  the  same  to  be  notified  to  the  person  from  whom  such  no- 
tice was  received,  within  seven  days  after  the  receipt  of  such  notice ; 
and,  in  default  of  such  notice,  or  if  such  house,  building,  or  drain, 
or  branches  thereto,  or  other  connected  works  and  apparatus  and  water 
supply,  be  begun,  erected,  made,  or  provided  in  any  respect  contrary 
to  any  order  of  the  vestry  or  board  made  and  notified  as  aforesaid, 
or  the  provisions  of  this  act,  it  shall  be  lawful  for  the  vestry  or  board 
to  cause  such  house  or  building  to  be  demolished  or  altered,  and  to 
cause  such  drain  or  branches  thereto,  and  other  connected  works 
and  apparatus,  and  water  supply,  to  be  re-laid,  amended,  or  re-made, 
or,  in  the  event  of  omission,  added,  as  the  case  may  require,  and  to 
recover  the  expenses  thereof  from  the  owner  thereof  in  the  manner 
hereinafter   provided." 

The  cause  was  tried  before  Willes,  J.,  at  the  sittings  in  Middlesex 
after  last  Michaelmas  term.  It  appeared  that  the  plaintiff,  a  builder, 
was  employed  to  build  a  house  within  the  Wandsworth  district,  and 
had  already  reached  the  second  story,  when  the  defendants,  without 
giving  him  any  notice,  sent  their  surveyor  and  a  number  of  work- 
men, at  a  late  hour  in  the  evening,  and  razed  it  to  the  ground. 

There  was  conflicting  evidence  as  to  whether  or  not  the  plaintiff 
had  given  the  notice,  required  by  the  seventy-sixth  section  of  the 
Metropolis  Local  Management  Act,  of  his  intention  to  build ;  he  al- 
leging that  he  had,  and  the  officers  of  the  board  denying  that  any 
such  notice  had  come  to  their  hands.     But  it  was  admitted  by  the 


Ch.  6)  ADMINISTRATIVE   EXECUTION.  253 

plaintiff  that  he  had  commenced  digging-  out  the  foundations  within 
live  days  of  the  day  on  which  he  alleged  he  had  sent  notice. 

On  the  part  of  the  plaintiff, "it  was  submitted  that  the  district  board 
of  works  had  no  power  under  the  circumstances  to  demolish  his 
house,  and  that,  assuming  they  had  such  power,  they  had  improperly 
exercised  it,  by  acting  without  notice  to  him  or  giving  him  an  op- 
portunity of  being  heard. 

For  the  defendants  it  was  insisted  that  the  seventy-sixth  section 
of  the  statute  gave  them  a  discretion,  against  the  exercise  of  which 
there  was  no  appeal,  except  to  the  metropolitan  board  of  works  under 
section  211,  and  that,  inasmuch  as  they  were  acting  ministerially,  and 
not  judicially,  they  were  not  bound  to  give  any  notice. 

Under  the  direction  of  the  learned  judge,  a  verdict  was  entered 
for  the  plaintiff,  leave  being  reserved  to  the  defendants  to  move  to 
enter  the  verdict  for  them,  or  a  nonsuit,  if  the  court  should  be  of  opin- 
ion that  the  action  was  not  maintainable. 

Erle,  C.  J.  I  am  of  opinion  that  this  rule  ought  to  be  discharged. 
This  was  an  action  of  trespass  by  the  plaintiff  against  the  Wandsworth 
district  board,  for  pulling  down  and  demolishing  his  house;  and 
the  ground  of  defense  that  has  been  put  forward  by  the  defendants 
has  been  under  the  seventy-sixth  section  of  the  Metropolis  Local  Man- 
agement Act,  18  &  19  Vict.  c.  120.  By  the  part  of  that  section  which 
applies  to  this  case,  it  is  enacted  that,  before  any  person  shall  begin 
to  build  a  new  house,  he  shall  give  seven  days'  notice  to  the  district 
board  of  his  intention  to  build ;  and  it  provides  at  the  end  that  in 
default  of  such  notice  it  shall  be  lawful  for  the  district  board  to  de- 
molish the  house.  The  district  board  here  say  that  no  notice  was 
given  by  the  plaintiff  of  his  intention  to  build  the  house  in  question, 
wherefore  they  demolished  it.  The  contention  on  the  part  of  the 
plaintiff  has  been  that,  although  the  words  of  the  statute,  taken  in 
their  literal  sense,  without  any  qualification  at  all.  would  create  a 
justification  for  the  act  which  the  district  board  has  done,  the  powers 
granted  by  that  statute  are  subject  to  a  qualification  which  has  been 
repeatedly  recognized,  that  no  man  is  to  be  deprived  of  his  property 
without  his  having  an  opportunity  of  being  heard.  The  evidence  here 
shows  that  the  plaintiff  and  the  district  board  had  not  been  quite  on 
amicable  terms.  Be  that  as  it  may,  the  district  board  say  that  no  no- 
tice was  given,  and  that  consequently  they  had  a  right  to  proceed  to 
demolish  the  house  without  delay,  and  without  notice  to  the  party 
whose  house  was  to  be  pulled  down,  and  without  giving  him  an  op- 
portunity of  shewing  any  reason  why  the  board  should  delay. 

I  think  that  the  power  which  is  granted  by  the  seventy-sixth  section 
is  subject  to  the  qualification  suggested.  It  is  a  power  carrying  with 
it  enormous  consequences.  The  house  in  question  was  built  only  to 
a  certain  extent.  But  the  power  claimed  would  apply  to  a  complete 
house.  It  would  apply  to  a  house  of  any  value,  and  completed  to  any 
extent ;  and  it  seems  to  me  to  be  a  power  which  may  be  exercised  most 


254  ADMIMSTKATIVE   POWER  AND   ACTION.  (Part    1 

perniciously,  and  that  the  limitation  which  we  are  going  to  put  upon 
it  is  one  which  ought,  according  to  the  decided  cases,  to  be  put  upon 
it,  and  one  which  is  required  by  a  due  consideration  for  the  public  in- 
terest. I  think  the  board  ought  to  have  given  notice  to  the  plaintiff, 
and  to  have  allowed  him  to  be  heard.  The  default  in  sending  notice 
to  the  board  of  the  intention  to  build  is  a  default  which  may  be  ex- 
plained. There  may  be  a  great  many  excuses  for  the  apparent  de- 
fault. The  party  may  have  intended  to  conform  to  the  law.  He  may 
have  actually  conformed  to  all  the  regulations  which  they  would  wish 
to  impose,  though  by  accident  his  notice  may  have  miscarried;  and, 
under  those  circumstances,  if  he  explained  how  it  stood,  the  proceed- 
ing to  demolish,  merely  because  they  had  ill  will  against  the  party,  is 
a  power  that  the  Legislature  never  intended  to  confer.  I  cannot  con- 
ceive any  harm  that  could  happen  to  the  district  board  from  hearing 
the  party  before  they  subjected  him  to  a  loss  so  serious  as  the  demoli- 
tion of  his  house;  but  I  can  conceive  a  great  many  advantages  which 
might  arise  in  the  way  of  public  order,  in  the  way  of  doing  substantial 
justice,  and  in  the  way  of  fulfilling  the  purposes  of  the  statute,  by  the 
restriction  which  we  put  upon  them,  that  they  should  hear  the  party 
before  they  inflict  upon  him  such  a  heavy  loss. 

I  fully  agree  that  the  Legislature  intended  to  give  the  district  board 
very  large  powers  indeed ;  but  the  qualification  I  speak  of  is  one 
which  has  been  recognized  to  the  full  extent.  It  has  been  said  that 
the  principle  that  no  man  shall  be  deprived  of  his  property  without 
an  opportunity  of  being  heard  is  limited  to  a  judicial  proceeding,  and 
that  a  district  board  ordering  a  house  to  be  pulled  down  cannot  be  said 
to  be  doing  a  judicial  act.  I  do  not  quite  agree  with  that;  neither  do 
I  undertake  to  rest  my  judgment  solely  upon  the  ground  that  the  dis- 
trict board  is  a  court  exercising  judicial  discretion  upon  the  point; 
but  the  law,  I  think,  has  been  applied  to  many  exercises  of  power  which 
in  common  understanding  would  not  be  at  all  more  a  judicial  proceed- 
ing than  would  be  the  act  of  the  district  board  in  ordering  a  house  to 
be  pulled  down.  The  case  of  the  corporation  of  the  University  of 
Cambridge,  who  turned  out  Dr.  Bentley,  in  the  exercise  of  their  as- 
sumed power  of  depriving  a  member  of  the  University  of  his  rights, 
and  a  number  of  other  cases  which  are  collected  in  the  Hammersmith 
Rent-Charge  Case,  4  Exch.  96,  in  the  judgment  of  Parke,  B.,  show 
that  the  principle  has  been  very  widely  applied.  The  district  board 
must  do  the  thing  legally;  there  must  be  a  resolution;  and,  if  there 
be  a  board,  and  a  resolution  of  that  board,  I  have  not  heard  a  word 
to  show  that  it  would  not  be  salutary  that  they  should  hear  the  man 
who  is  to  suffer  from  their  judgment  before  they  proceed  to  make  the 
order  under  which  they  attempt  to  justify  their  act. 

It  is  said  that  an  appeal  from  the  district  board  to  the  metropolitan 
board  (under  section  211)  would  be  the  mode  of  redress.  But,  if  the 
district  board  have  the  power  to  do  what  is  here  stated,  I  am  not  at 
all  clear  that  there  would  be  a  right  of  redress  in  that  way.    The  met- 


Ch.  6)  ADMINISTRATIVE   EXECUTION.  255 

ropolitan  board  may  not  have  a  rig^ht  to  give  redress  for  that  which 
was  done  under  the  provisions  of  the  statute.  I  think  the  appeal  clause 
would  evidently  indicate  that  many  exercises  of  the  power  of  a  district 
board  would  be  in  the  nature  of  judicial  proceedings,  because,  certainly 
when  they  are  appealed  from,  the  appellant  and  the  respondent  are  to 
be  heard  as  parties,  and  the  matter  is  to  be  decided  at  least  according 
to  judicial  forms.  I  take  that  to  be  a  principle  of  very  wide  applica- 
tion, and  applicable  to  the  present  case ;  and  I  think  this  board  was  not 
justified  under  the  statute,  because  they  have  not  qualified  themselves 
for  the  exercise  of  their  power  by  hearing  the  party  to  be  affected  by 
their  decision. 

WiLLES,  J.**  I  am  of  the  same  opinion.  *  *  *  There  is  anoth- 
er remark  to  be  made  with  reference  to  these  parties'  proceedings. 
The  board  are  not  only  to  do  the  work  of  demolishing  the  house,  if 
they  think  proper,  or  modifying  it,  but  they  are  to  charge  the  ex- 
penses on  the  person  who  has  erred  against  the  act.  His  property  is 
affected  and  his  purse  is  further  affected.  What  happens  upon  that? 
and  how  is  the  money  to  be  got?  That  is  a  proceeding  under  the  225th 
section,  which  is  a  section  giving  jurisdiction  to  the  justices  before 
whom  the  costs  are  to  be  ascertained  and  recovered ;  and  it  is  clear 
that  under  that  section  the  justices  could  not  proceed  without  having 
before  them  the  person  against  whom  the  expenses  are  to  be  adjudged. 
And  it  does  seem  an  absurdity  to  say  that  in  determining  the  amount 
of  expenses  the  party  shall  be  heard,  but  that  in  determining  whether 
proceedings  should  be  taken  his  mouth  should  be  closed.  I  cannot 
help  thinking  that  a  board  exercising  this  large  power  should  follow 
the  ordinary  rule,  that  the  party  sought  to  be  affected  should  be  heard ; 
and  I  think  that  the  verdict  for  the  plaintiff  ought  to  stand. 

BylES,  J.  I  am  of  the  same  opinion.  This  is  a  case  in  which  the 
Wandsworth  district  board  have  taken  upon  themselves  to  pull  down 
a  house,  and  to  saddle  the  owner  with  the  expenses  of  demolition,  with- 
out notice  of  any  sort.  There  are  two  sorts  of  notice  which  may  pos- 
sibly be  required,  and  neither  of  them  has  been  given — one,  a  notice 
of  a  hearing,  that  the  party  may  be  heard  if  he  has  anything  to  say 
against  the  demolition;  the  other  is  a  notice  of  the  order,  that  he  may 
consider  whether  he  can  mitigate  the  wrath  of  the  board,  or  in  any 
way  modify  the  execution  of  the  order.  Here  they  have  given 
him  neither  opportunity.  It  seems  to  me  that  that  board  are  wrong, 
whether  they  acted  judicially  or  ministerially.  I  conceive  they  acted 
judicially,  because  they  had  to  determine  the  offense,  and  they  had 
to  apportion  the  punishment  as  well  as  the  remedy.  This  being  so, 
a  long  course  of  decisions,  beginning  with  Dr.  Bentley's  Case,  Rex 
V.  Chancellor,  etc.,  of  Cambridge,  1  St.  557,  2  Ld.  Raym.  1334,  8  Mod. 
148,  Fortescue,  202,  and  ending  with  some  very  recent  cases,  estab- 
lish that,  although  there  are  no  positive  words  in  a  statute  requiring 

»  Only  a  portion  of  the  opinions  of  ^Yilles  and  Byles,  JJ.,  are  printed. 


256  ADMINISTRATIVE    I'OWKR    AND    ACTION.  (Part    1 

that  the  party  shall  be  heard,  yet  the  justice  of  the  common  law  will 
supply  the  omission  of  the  Legislature.     ^-     *     * 
Kule  discharged. ^° 


NORTH    AMERICAN    COLD    STORAGE    CO.    v.    CITY    OF 
CHICAGO. 

(Supreme  Court  of  United  States,  1!X)8.     211  U.  S.  30(3,  29  Sup.  Ct.  101,  53 
L.  Ed.   195.) 

The  case  involved  the  question  of  the  validity  of  section  1161  of  the 
Revised  Municipal  Code  of  the  City  of  Chicago  for  1905,  which  reads 
as  follows : 

"Every  person  being  the  owner,  lessee,  or  occupant  of  any  room, 
stall,  freight  house,  cold  storage  house,  or  other  place,  other  than  a 
private  dwelling,  where  any  meat,  fish,  poultry,  game,  vegetables, 
fruit,  or  other  perishable  article  adapted  or  designed  to  be  used  for 
human  food  shall  be  stored  or  kept,  whether  temporarily  or  otherwise, 
and  every  person  having  charge  of,  or  being  interested  or  engaged, 
whether  as  principal  or  agent,  in  the  care  of  or  in  respect  to  the  custody 
or  sale  of  any  such  article  of  food  supply,  shall  put,  preserve,  and  keep 
such  article  of  food  supply  in  a  clean  and  wholesome  condition,  and 
shall  not  allow  the  same,  nor  any  part  thereof,  to  become  putrid,  de- 
cayed, poisoned,  infected,  or  in  any  other  manner  rendered  or  made  un- 
safe or  unwholesome  for  human  food;  and  it  shall  be  the  duty  of  the 
meat  and  food  inspectors  and  other  duly  authorized  employes  of  the 
health  department  of  the  city  to  enter  any  and  all  such  premises  above 
specified  at  any  time  of  any  day,  and  to  forthwith  seize,  condemn, 
and  destroy  any  such  putrid,  decayed,  poisoned,  and  infected  food, 
which  any  such  inspector  may  find  in  and  upon  said  premises."    *    *    * 

PECkham,  J-^^  *  *  *  Complainant,  however,  contends  that 
there  was  no  emergency  requiring  speedy  action  for  the  destruction 
of  the  poultry  in  order  to  protect  the  public  health  from  danger  re- 
sulting from  consumption  of  such  poultry.  It  is  said  that  the  food  was 
in  cold  storage,  and  that  it  would  continue  in  the  same  condition  it 
then  was  for  three  months,  if  properly  stored,  and  that  therefore  the 
defendants  had  ample  time  in  which  to  give  notice  to  complainant  or 
the  owner  and  have  a  hearing  of  the  question  as  to  the  condition  of  the 
poultry;  and,  as  the  ordinance  provided  for  no  hearing,  it  was  void. 
But  we  think  this  is  not  required.  The  power  of  the  Legislature  to  en- 
act laws  in  relation  to  the  public  health  being  conceded,  as  it  must  be, 
it  is  to  a  great  extent  within  legislative  discretion  as  to  whether  any 
hearing  need  be  given  before  the  destruction  of  unwholesome  food 
which  is  unfit  for  human  consumption.    If  a  hearing  were  to  be  always 

10  Approved  by  Court  of  Appeal,  Hopkins  v.  Smetliwick  Local  Board  of 
Health,  24  Q.  R.  D.  712   (1890). 

11  Only  a  portion  of  the  opinion  of  reckham,  J.,  is  printed. 


Ch.  6)  ADMINISTRATIVE   EXECUTION.  257 

necessary,  even  under  the  circumstances  of  this  case,  the  question  at 
once  arises  as  to  what  is  to  be  done  with  the  food  in  the  meantime. 
Is  it  to  remain  with  the  cold  storage  company,  and,  if  so,  under  what 
security  that  it  will  not  be  removed  ?  To  be  sure  that  it  will  not  be  re- 
moved during  the  time  necessary  for  the  hearing,  which  might  fre- 
quently be  indefinitely  prolonged,  some  guard  would  probably  have 
to  be  placed  over  the  subject-matter  of  investigation,  which  would 
involve  expense,  and  might  not  even  then  prove  effectual.  What  is  the 
emergency  which  would  render  a  hearing  unnecessary  ? 

We  think  when  the  question  is  one  regarding  the  destruction  of  food 
which  is  not  fit  for  human  use  the  emergency  must  be  one  which  would 
fairly  appeal  to  the  reasonable  discretion  of  the  Legislature  as  to  the 
necessity  for  a  prior  hearing,  and  in  that  case  its  decision  would  not  be 
a  subject  for  review  by  the  courts.  As  the  owner  of  the  food  or  its 
custodian  is  amply  protected  against  the  party  seizing  the  food,  who 
must,  in  a  subsequent  action  against  him,  show  as  a  fact  that  it  was 
within  the  statute,  we  think  that  due  process  of  law  is  not  denied ,  the 
I  owner  or  custodian  by  the  destruction  of  the  food  alleged  to  be  un- 
wholesome and  unfit  for  human  food  without  a  preliminary  hearing. 
The  cases  cited  by  the  complainant  do  not  run  counter  to  those  we 
i    have  above  referred  to. 

I  Even  if  it  be  a  fact  that  some  value  may  remain  for  certain  purposes 
I  in  food  that  is  unfit  for  human  consumption,  the  right  to  destroy  it 
j  is  not,  on  that  account,  taken  away.  The  small  value  that  might  remain 
in  said  food  is  a  mere  incident,  and  furnishes  no  defense  to  its  destruc- 
tion when  it  is  plainly  kept  to  be  sold  at  some  time  as  food.  California 
Reduction  Co.  v.  Sanitary  Reduction  Works,  199  U.  S.  306-323,  26 
Sup.  Ct.  100,  50  L.  Ed.  204-211 ;  Gardner  v.  Michigan,  199  U.  S. 
325.  331.  26  Sup.  Ct.  106,  50  L.  Ed.  212,  216. 

The  decree  of  the  court  below  is  modified  by  striking  out  the  ground 
for  dismissal  of  the  bill  as  being  for  want  of  jurisdiction,  and,  as  modi- 
fied, is  affirmed.^ - 

Mr.  Justice  Brewer  dissents. 

12  See  Pruden  v.  Love,  67  Ga.  100  (1881).  notice  required  by  statute. 

Notice  in  execution  of  tax  distress  warrants,  see  Cooley,  Taxation,  pp.  441- 
^  443. 

As  to  summary  action  against  persons,  see  Haverty  v.  Bass.  66  Me.  71 
(1876),  quarantine;  Lovell  v.  Seebacli,  4.5  Minn.  465,  48  N.  W.  23,  11  L.  R. 
A.  667  (1891),  removal  of  paupers;    also  19  Opinions  Attys.  Gen.  706  (1890). 

Collection  of  taxes  by  seizure  of  person,  see  Palmer  v.  McMahon,  133  U. 
S.  660,  10  Sup.  Ct.  324,  33  L.  Ed.  772  (1890). 

T'e.Adm.Law  — 17 


J58  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 


SECTION     32.— FORFEITURE     BY     ADMINISTRATIVE 
PROCESS 


WILCOX  V.  HEMMING. 

(Supreme  Court  of  Wiscousiu,  1883.     58  Wis.  144,  15  N.  W.  435, 
46  Am.  Kep.  625.) 

Orton,  J.^^  This  is  an  action  of  replevin,  without  claim  of  delivery, 
for  three  horses,  the  property  of  the  plaintiff,  taken  and  detained  by  the 
defendant.  The  defendant  justifies  such  taking  and  detention  by  virtue 
of  his  being  master  or  keeper  of  the  public  pound  of  the  city  of  Janes- 
ville,  and  having  authority  and  right  under  the  charter  and  ordinances 
of  said  city  to  receive  and  detain  said  horses  in  such  pound,  and  to  sell 
the  same,  on  account  of  their  having  been  permitted  by  the  plaintiff  as 
such  owner  to  run  or  be  at  large  in  one  of  the  streets  of  said  city  in 
violation  of  such  ordinances. 

Some  questions  are  raised  on  the  evidence  and  charge  of  the  court 
to  the  jury,  which  will  be  first  disposed  of  before  the  consideration  of 
the  important  and  principal  question  in  the  case,  viz.,  the  constitutionali- 
ty of  the  ordinance  in  question  by  which  the  defendant  claims  justi- 
fication, for  the  taking  and  detention  of  the  property.     *     *     * 

5.  The  main  and  important  objection  to  the  justification  of  the  de- 
fendant under  pretended  legal  authority  is  that  the  ordinance  under 
which  he  received,  held,  and  sold  the  horses  of  the  plaintiff  is  uncon- 
stitutional, as  authorizing  the  forfeiture,  condemnation,  or  confiscation 
of  property  without  due  process  of  law,  and  without  compensation,  etc. 
It  is  contended  that  before  the  property  is  sold  there  should  be  provi- 
sion for  an  adjudication  in  court  of  the  facts  which  would  make  such 
property  liable  to  be  thus  taken  and  sold.  What  disposition  is  to  be 
made  by  the  terms  of  the  ordinance  of  the  proceeds  of  such  sale  is 
unimportant  in  determining  the  constitutionality  of  those  provisions 
which  authorize  the  restraint  and  sale  of  such  property.  The  mischief 
complained  of  ends  with  the  sale,  for  the  property  of  the  owner  in  such 
animals  is  thereby  taken  away,  and  it  would  not  cure  the  mischief  and 
scarcely  mitigate  the  wrong  to  offer  the  owner  the  remnant  of  the  pro- 
ceeds of  the  sale  after  deducting  the  expenses  of  keeping  and  sale,  and 
the  fine  incurred,  or  even  the  proceeds  without  any  such  deduction. 

The  provisions  of  the  charter  of  the  city  above  cited  fully  authorize 
the  receiving,  keeping,  and  sale  of  such  animals  running  at  large  in 
the  public  streets,  and  the  passing  of  an  ordinance  to  carry  such  pro- 
vision into  execution,  so  that  the  act  of  the  Legislature  is  amenable 
to  this  objection  of  unconstitutionality,  as  well  as  the  ordinance  itself. 

13  Only  a  portion  of  the  opinion  of  Ortou,  J.,  is  printed. 


Ch.  (J)  ADMINISTRATIVE   EXECUTION.  259 

The  provisions  of  the  charter  above  referred  to  are  that  such  animals 
may  be  "impounded  and  sold  to  discharge  the  penalty  for  the  violation 
of  the  ordinance,  and  the  expenses  of  impounding  and  sale."  Here  is 
found  the  authority  for  prescribing  a  fine  for  such  ofifense,  as  well  as 
the  impounding  and  sale.  The  right  of  such  legislation  can  be  found 
and  justified  only  by  that  police  power  of  the  state  to  provide  summary 
and  suitable  methods  and  proceedings  to  protect  the  public  health, 
peace,  and  tranquility,  and  the  use  of  the  highway,  which  transcends 
private  rights  and  the  constitutional  provisions  for  their  protection. 

[The  opinion  here  cites  and  quotes  from  the  following  cases :     Com. 
V.  Alger,  7  Cush.  ( Mass.)  85 ;    Pettit  v.  May,  34  Wis.  666 ;    Miles  v. 
Chamberlain,  17  Wis.  4-i6 ;   Rockwell  v.  Nearing,  35  N.  Y.  302 ;   Rob- 
erts V.  Ogle,  30  111.  459,  83  Am.  Dec.  301;  Clark  v.^Lewis,  35  111.  417; 
Case  V.  Hall,  21  111.  632;    Friday  v.  Floyd,  63  111.  50;    Kennedy  v. 
Sowden,  1  McMul.  (S.  C.)  323 ;    Crosby  v.  Warren,  1  Rich.  Law  (S. 
C.)  385 ;   Shaw  v.  Kennedy,  4  N.  C.  591 ;   Hellen  v.  Noe,  25  N.  C.  495 ; 
Whitfield  V.  Longest,  28  N.  C.  268 ;   Spitler  v.  Young,  63  Mo.  42 ;   Gil- 
I  Christ  V.  Schmidling,  12  Kan.  263 ;   White  v.  Tallman,  26  N.  J.  Law, 
67 ;   Varden  v.  Mount,  78  Ky.  86,  39  Am.  Rep.  208 ;    Cotter  v.  Doty, 
5  Ohio,  393 ;  McKee  v.  McKee,  8  B.  Mon.  (Ky.)  433 ;  Hart  v.  Mayor 
of  Albany,  9  Wend.  (N.  Y.)  571,  24  Am.  Dec.  165.] 
1      There  are  many  other  cases  which  might  be  cited  to  sustain  this 
I  power  given  in  the  charter  to  the  common  council  to  make  ordinances 
j  to  restrain  animals  from  running  at  large  in  the  public  streets,  and  to 
i  impound  and  sell  them  to  pay  the  expenses,  etc.     So  far  the  ordinance 
j  itself  has  not  been  examined.    There  are  some  decisions,  it  must  be  ad- 
j  mitted,  which  hold  that  such  legislation,  as  well  as  ordinances  under  it, 
I  are  void  as  being  in  conflict  with  the  constitutional  provisions  for  the 
I  protection  of  property ;  but  it  is  observable  that  in  such  cases  this  police 
power,  the  exercise  of  which  in  a  summary  manner  is  absolutely  neces- 
sary for  the  protection  of  the  public  in  the  use  of  its  highways,  is  scarce- 
ly alluded  to.    The  question  is  of  great  importance,  and  one  not  with- 
out difficulty.    To  seize  and  sell,  upon  necessarily  short  notice,  animals 
of  great  value,  because  permitted  by  the  owner  to  run  at  large  in  the 
street,  without  an  adjudication  of  the  offense  in  the  courts,  appears  to 
|be  a  harsh  remedy.    But  how  this  summary  mode  of  proceeding  can  be 
'avoided,  without  surrendering  the  whole  police  power  to  protect  the 
.highways  from  such  an  encroachment,  which  destroys  their  use  by  the 
[public  for  the  time  being,  we  fail  to  perceive.    The  owner  will  not  re- 
|strain  his  own  animals  from  running  upon  the  streets.     The  city  au- 
ithorities  must  do  so,  and  at  once.    Then  such  animals  must  be  fed  and 
|:ared  for  and  kept  until  the  owner  shall  pay  the  expenses  and  take  them 
[away.    If  he  fails  or  refuses  to  do  so,  they  must  be  sold.     But  we  have 
jilready  taken  this  view  of  the  case,  and  will  proceed  no  further  with 
he  argument  in  this  opinion,  already  too  long. 

The  first  section  of  the  ordinance  prohibits  cattle,  horses,  etc.,  from 
unning  or  being  at  large  in  any  street,  highway,  etc.    The  second  sec- 


260  ADMINISTRATIVE   POWER   AND   ACTION.  .(Part    1 

tion  provides  a  forfeiture  and  fine  of  one  dollar  against  the  owner  of 
the  animal.  The  third  authorizes  any  person  so  finding  animals  run- 
ning at  large  to  drive  them  to  the  pound,  and  allows  25  cents  for  such 
service  for  each  animal.  The  fourth  makes  it  the  duty  of  the  pound- 
master  to  receive  them,  to  pay  such  25  cents  to  the  person  driving 
them,  and  to  provide  suitable  sustenance  for  the  animals  in  the  pound, 
and  allows  the  pound-master  his  costs  and  charges,  and  50  per  cent, 
additional  to  the  costs.  The  fifth  authorizes  the  owner  to  take  them 
away  on  payment  of  the  fine  and  charges.  The  sixth  provides  for 
notice  of  two  days,  to  be  once  published  in  a  daily  or  weekly  newspa- 
per, and  posted  at  three  public  places  in  the  city,  of  the  sale  to  be  made,, 
after  six  days  from  the  impounding,  at  public  vendue  at  the  pound, 
provided  they  are  not  released  by  the  owner  taking  them  away,  "or 
I  they  are]  taken  thereout  by  proceedings  at  law."  For  want  of  bidders 
the  sale  may  be  adjourned  by  proclamation  at  the  time,  or,  if  they  will 
not  sell  for  sufficient  to  pay  the  charges  and  expenses,  it  may  be  again 
adjourned.  The  seventh  section  provides  for  the  disposition  of  the 
proceeds  of  sale  as  follows :  The  pound-keeper  deducts  therefrom  his 
charges  of  subsistence,  money  paid  for  driving,  expenses  of  sale,  and 
"one-half  of  the  penalty,"  and  the  balance  thereof  shall  be  paid  to  the 
treasurer  of  the  city.  These  are  all  of  the  provisions  which  need  be 
noticed  as  being  material  to  the  main  question.  These  regulations 
would  seem  to  be  reasonable  and  proper  to  effect  the  object  sought, 
and  are  really  necessary  to  protect  the  public,  and,  so  far  as  possible,  the 
rights  of  the  owner.  There  is  nothing  in  the  evidence  itself  or  thej 
charter  which  forfeits  or  confiscates  the  proceeds  of  the  sale  of  the 
property  beyond  the  payment  of  the  legal  charges  thereon.  The  over- 
plus belongs  to  the  owner,  and  he  may  obtain  it  at  any  time  he  chooses  to 
do  so.  It  cannot  be  presumed  that  it  is  placed  in  the  city  treasury  as 
belonging  to  the  city,  but  only  for  safe-keeping. 

It  will  be  observed  that,  according  to  the  sixth  section,  the  owners 
may,  at  any  time  before  the  sale,  take  the  animals  away  by  proceedings 
at  law,  which  would  include  the  action  of  replevin,  an  action  which 
would  not  lie  at  common  law  against  a  pound-keeper,  and  try  in  court i 
the  question  of  their  liability  to  be  impounded ;  and  there  is  ample  no-; 
tice  of  the  sale  elsewhere  provided,  so  that,  although  no  adjudication; 
is  provided  before  restraint  and  impounding,  the  owner's  day  in  court 
upon  the  question  of  his  liability  to  pay  the  fine,  and  the  animal's  lia- 
bility to  be  restrained,  are  not  lost  or  foreclosed. 

There  is  one  provision  of  the  ordinance,  however,  which  cannot 
be  sustained,  and  that  is  that  the  pound-keeper  may  deduct  the  fine  of, 
one  dollar  imposed,  out  of  the  proceeds  of  the  sale,  or  exact  such  fine 
before  surrendering  the  property  before  sale.  This  is  made  a  fine  and 
forfeiture,  andl  it  must  be  enforced  by  action  in  court,  as  well  as  other 
fines  and  forfeitures  under  the  general  statute,  or  under  sections  11  and 
12  of  the  charter,  which  provides  for  their  collection.  The  adjudication 
of  this  matter  cannot  be  taken  away,  for  it  is  the  punishment  of  the 


Ch.  6)  ADMINISTRATIVE    EXECUTION.  261 

owner  for  permitting  his  animals  to  go  at  large  on  the  streets  in  viola- 
tion of  the  charter  and  of  the  ordinance.  But  this  is  a  very  insignificant 
and  unimportant  part  of  the  ordinance  and  of  the  provision  of  the  char- 
ter. This  is  a  matter  in  personam  and  a  personal  liahility,  and  as  pun- 
ishment in  some  measure  for  the  violation  of  the  ordinance,  to  deter 
him  and  others  from  like  offending,  and  is  distinct  from  the  main  pro- 
visions of  the  ordinance  in  accordance  with  which  the  animals  them- 
selves are  cared  for  and  disposed  of  after  removing  them  from  the 
streets.  We  cannot  think  that  the  matter  of  the  fine  was  deemed  im- 
portant by  the  Legislature  to  the  validity  of  the  other  main  provisions, 
or  that  such  provisions  would  not  have  been  adopted  if  the  fine  had 
been  omitted  as  a  deduction  from  the  proceeds  of  the  sale  and  as  a 
charge  upon  the  property.  To  that  extent  only  the  charter  relating  to 
the  subject  and  the  ordinance  thereunder  should  be  held  void  for  un- 
constitutionality. 

In  Gosselink  v.  Campbell,  4  Iowa,  29C,  the  general  ordinance  and  the 
charter  were  very  similar  to  this  in  every  respect,  including  the  fine,  and 
the  court  held  the  general  ordinance  valid,  and  that  part  relating  to  the 
deduction  of  the  fine  from  the  proceeds  of  the  sale  as  a  charge  upon  the 
property  as  invalid ;  and  we  adopt  the  language  of  that  court,  so  well 
considered  and  especially  appropriate,  and  as  expressing  a  correct  rule 
of  constitutional  law  in  such  cases:  "Proceedings  for  the  abatement 
of  the  nuisance  are  of  a  more  summary  nature  than  actions,  from  the 
necessity  of  the  case.  The  ordinance  does  not,  strictly  speaking,  create 
a  forfeiture ;  for,  after  paying  the  expenses  and  fine,  the  remainder  of 
the  proceeds  of  sale  are  paid  to  the  owner.  It  is  then,  in  effect,  but  the 
;  abatement  of  the  nuisance,  and  as  such  is  regular.  It  is  sufficient  for 
I  the  abatement  of  the  nuisance  and  the  payment  of  the  charges,  but 
not  for  the  enforcement  of  the  fine." 

In  Willis  V.  Legris,  45  111.  289,  the  ordinance  placed  the  fine  for  the 
violation  of  the  ordinance  with  the  charges  and  expenses  of  impound- 
ing and  sale,  and  the  court  said :  "This  provision  is  void  as  contraven- 
ing that  constitutional  right  every  man  has  to  an  investigation  in  court 
when  charged  with  an  offense  punishable  by  fine.  *  *  *  The  city 
marshal  had  no  right  to  detain  the  horses  for  the  reason  the  penalty 
was  not  paid." 

We  hold,  therefore,  that  the  provisions  of  the  charter  authorizing 
the  ordinance  to  restrain,  impound,  and  sell  animals  running  at  large 
in  the  streets,  and  the  ordinance  itself,  so  far  as  they  relate  to  the  tak- 
ing up,  impounding,  and  selling  such  animals,  are  valid,  and  that  part 
of  both  the  charter  and  the  ordinance  making  the  fine  of  one  dollar  a 
charge  upon  the  property,  to  be  paid  by  the  owner  before  he  can  take 
them  away,  and  to  be  deducted  from  the  proceeds  of  the  sale,  void. 

It  may  be  said  incidentally,  before  closing  this  subject,  that  such 
legislation  andl  municipal  regulations  providing  for  summary  proceed- 
ings without  trial,  for  the  abatement  of  nuisances  of  a  public  character, 
involving  the  destruction  or  forfeiture  of  things  inanimate,  are  not  as 


262  ADMIMSTUATIVE   TOWER   AND   ACTION.  (Part    1 

u-ell  supported  by  necessity  or  emergency  as  those  involving  the  keep- 
ing, impounding,  and  selHng  of  animals  requiring  immediate  and  con- 
stant care,  subsistence,  and  expense,  and  in  respect  to  which  long  de- 
lay is  inadmissible.  Cases  are  numerous  of  the  former  class,  in  which 
summary  proceedings,  without  ordinary  trial  for  abatement,  have 
been  allowed,  without  a  thought  of  any  infringement  of  a  constitution- 
al right.     *     *     * 

The  judgment  of  the  circuit  court  is  affirmed.^* 


LAWTON  et  al.  v.  STEELE. 

(Supreme  Court  of  United  States,  1894.     152  U.  S.  13.3,  14  Sup.  Ct.  499,  38 
L.  Ed.  385.) 

In  Error  to  the  Supreme  Court  of  the  State  of  New  York. 

This  was  an  action  at  law  instituted  in  the  Supreme  Court  for  the 
county  of  Jefferson,  by  the  plaintiffs  in  error  against  the  defendant 
in  error,  together  with  Edward  L.  Sargent  and  Richard  U.  Sherman, 
for  the  conversion  of  15  hoop  and  fyke  nets,  of  the  alleged  value  of 
$525.  Defendants  Steele  and  Sargent  interposed  a  general  denial.  De- 
fendant Sherman  pleaded  that  he,  with  three  others,  constituted  the 
commissioners  of  fisheries  of  the  state  of  New  York,  with  power  to 
give  directions  to  game  and  fish  protectors  with  regard  to  the  enforce- 
ment of  the  game  law ;  that  defendant  Steele  was  a  game  and  fish  pro- 
tector duly  appointed  by  the  Governor  of  the  state  of  New  York;  and 
that  the  nets  sued  for  were  taken  possession  of  by  said  Steele,  as  such 
game  and  fish  protector,  upon  the  ground  that  they  were  maintained 
upon  the  waters  of  the  state  in  violation  of  existing  statutes  for  the 
protection  of  fish  and  game,  and  thereby  became  a  public  nuisance. 

The  facts  were  undisputed.  The  nets  were  the  pi-operty  of  the  plain- 
tiffs, and  were  taken  away  by  the  defendant  Steele,  and  destroyed.    At 

14  Compare  Greer  v.  Downey,  8  Ariz.  1G4,  71  Pac.  900,  Gl  L.  R.  A.  408 
(1903),  case  of  a  private  claim. 

"It  remains  only  to  consider  thie  contention  that  the  provision  of  the  stat- 
ute commanding  the  destruction  of  teas  not  exported  within  six  months  after 
their  final  rejection  was  unconstitutional.  The  importer  was  charged  with 
notice  of  the  provisions  of  the  law,  and  the  conditions  upon  which  teas  might 
he  brought  from  abroad,  with  a  view  to  their  introduction  into  the  United 
States  for  consumption.  Failing  to  establish  the  right  to  import,  because  of 
the  inferior  quality  of  the  merchandise  as  compared  with  the  standard,  the 
duty  was  imposed  upon  the  importer  to  perform  certain  requirements,  and 
to  take  the  goods  from  the  custody  of  the  authorities  within  a  period  of  time 
fixed  by  the  statute,  which  was  ample  in  duration.  He  was  notified  of  the 
happening  of  the  various  contingencies  requiring  positive  action  on  Ids  part. 
The  duty  to  take  such  action  was  enjoined  upon  him,  and  if  he  failed  to 
exercise  it  tlie  collector  was  under  the  obligation  after  the  expiration  of  the 
time  limit  to  destroy  the  goods.  That  plaintiff  in  error  had  knowledge  of 
the  various  steps  taken  with  respect  to  the  tea,  including  the  final  rejection 
by  the  Iward  of  general  appraisers,  is  conceded.  We  think  the  provision  of 
the  statute  complained  of  was  not  wanting  in  due  process  of  law."  Buttfield 
V.  Stranahan,  192  U.  S.  470,  497,  24  Sup.  Ct.  349,  356,  48  L.  Ed.  525  (190i). 


Ch.  G)  ADMINISTRATIVE   EXECUTION.  263 

the  time  of  the  taking-,  most  of  the  nets  were  in  the  waters  of  the  Black 
River  Bay,  being  used  for  fishing  purposes,  and  the  residue  were  upon 
the  shore  of  that  bay,  having  recently  been  used  for  the  same  purpose. 
The  plaintiffs  were  fishermen,  and  the  defendant  Steele  was  a  state 
game  and  fish  protector.  The  taking  and  destruction  of  the  nets  were 
claimed  to  have  been  justifiable  under  the  statutes  of  the  state  relating 
to  the  protection  of  game  and  fish.  Plaintiffs  claimed  there  was  no  jus- 
tification under  the  statutes,  and,  if  they  constituted  such  justification 
upon  their  face,  they  were  unconstitutional.  Defendant  Sherman  was 
a  state  fish  commissioner.  Defendant  Sargent  was  president  of  the 
Jefferson  County  Fish  &  Game  Association.  Plaintiffs  claimed  these 
defendants  to  be  liable  upon  the  ground  that  they  instigated,  incited,  or 
directed  the  taking  and  destruction  of  the  nets. 

Upon  trial  before  a  jury  a  verdict  was  rendered,  subject  to  the  opin- 
ion of  the  court,  in  favor  of  the  plaintiffs  against  defendant  Steele  for 
the  sum  of  $316,  and  in  favor  of  defendants  Sargent  and  Sherman.  A 
motion  for  a  new  trial  was  denied,  and  judgment  entered  upon  the  ver- 
dict for  $216  damages  and  $166.09  costs.  On  appeal  to  the  General 
Term  this  judgment  was  reversed,  and  a  new  trial  ordered,  and  a  fur- 
ther appeal  allowed  to  the  Court  of  Appeals.  On  appeal  to  the  Court 
of  Appeals  the  order  of  the  General  Term  granting  a  new  trial  was  af- 
firmed, and  judgment  absolute  ordered  for  the  defendant.  119  N.  Y. 
226,  23  N.  E.  878,  7  L.  R.  A.  134,  16  Am.  St.  Rep.  813.  Plaintiffs 
thereupon  sued  out  a  writ  of  error  from  this  court. 

Mr.  Justice  Brown, ^^  after  stating  the  facts  in  the  foregoing  lan- 
guage, delivered  the  opinion  of  the  court. 

This  case  involves  the  constitutionality  of  an  act  of  the  Legislature 
of  the  state  of  New  York  known  as  chapter  591,  Laws  N.  Y.  1880,  as 
amended  by  chapter  317,  Laws  N.  Y.  1883,  entitled  "An  act  for  the 
appointment  of  game  and  fish  protectors."     *     *     * 

By  the  act  of  1880,  as  amended  by  the  act  of  1883  : 

"Sec.  2.  Any  net,  pound,  or  other  means  or  device  for  taking  or  cap- 
turing fish,  or  whereby  they  may  be  taken  or  captured,  set,  put,  floated, 
had,  found,  or  maintained  in  or  upon  any  of  the  waters  of  this  state, 
or  upon  the  shores  of  or  islands  in  any  of  the  waters  of  this  state,  in 
violation  of  any  existing-  or  hereafter  enacted  statutes  or  laws  for  the 
protection  of  fish,  is  hereby  declared  to  be  and  is  a  public  nuisance, 
and  may  be  abated  and  summarily  destroyed  by  any  person,  and  it  shall 
be  the  duty  of  each  and  every  protector  aforesaid  and  of  every  game 
constable  to  seize  and  remove  and  forthwith  destroy  the  same,  *  *  * 
and  no  action  for  damages  shall  lie  or  be  maintained  against  any  person 
for  or  on  account  of  any  such  seizure  and  destruction." 

This  last  section  was  alleged  to  be  unconstitutional  and  void  for 
three  reasons:  (1)  As  depriving  the  citizen  of  his  property  without 
due  process  of  law;    (3)  as  being-  in  restraint  of  the  liberty  of  the 

16  Only  a  portion  of  the  opinion  of  Brown,  J.,  is  printed. 


264  ADMINISTUATIVE    POWER   AND   ACTION.  (Part    1 

citizen;  (3)  as  being  an  interference  with  the  admiralty  and  maritime 
jurisdiction  of  the  United  States. 

The  trial  court  ruled  the  first  of  the  above  propositions  in  plaintiffs' 
favor,  and  the  others  against  them,  and  judgment  was  thereupon  en- 
tered in  favor  of  the  plaintiffs. 

The  constitutionality  of  the  section  in  question  was,  however,  sus- 
tained by  the  General  Term  and  by  the  Court  of  Appeals,  upon  the 
ground  of  its  being  a  lawful  exercise  of  the  police  power  of  the  state. 
*     *     * 

The  main,  and  only  real,  difficulty  connected  with  the  act  in  question, 
is  in  its  declaration  that  any  net,  etc.,  maintained  in  violation  of  any 
law  for  the  protection  of  fisheries  is  to  be  treated  as  a  public  nuisance, 
"and  may  be  abated  and  summarily  destroyed  by  any  person;  and  it 
shall  be  the  duty  of  each  and  every  protector  aforesaid  and  every  game 
constable,  to  seize,  remove,  and  forthwith  destroy  the  same."  The 
Legislature,  however,  undoubtedly  possessed  the  power,  not  only  to 
prohibit  fishing  by  nets  in  these  waters,  but  to  make  it  a  criminal 
offense,  and  to  take  such  measures  as  were  reasonable  and  necessary 
to  prevent  such  offenses  in  the  future.  It  certainly  could  not  do  this 
more  effectually  than  by  destroying  the  means  of  the  oft'ense.  If 
the  nets  were  being  used  in  a  manner  detrimental  to  the  interests  of  the 
public,  we  think  it  was  within  the  power  of  the  Legislature  to  declare 
them  to  be  nuisances,  and  to  authorize  the  officers  of  the  state  to 
abate  them.  Hart  v.  Mayor,  9  Wend.  (N.  Y.)  571,  24  Am.  Dec. 
165 ;  Meeker  v.  Van  Rensselaer,  15  Wend.  (N.  Y.)  397.  An  act  of  the 
Legislature  which  has  for  its  object  the  preservation  of  the  public  in- 
terests against  the  illegal  depredations  of  private  individuals  ought  to 
be  sustained,  unless  it  is  plainly  violative  of  the  constitution  or  sub- 
versive of  private  rights.  In  this  case  there  can  be  no  doubt  of  the 
right  of  the  Legislature  to  authorize  judicial  proceedings  to  be  taken 
for  the  condemnation  of  the  nets  in  question,  and  their  sale  or  de- 
struction by  process  of  law.  Congress  has  assumed  this  power  in  a 
large  number  of  cases,  by  authorizing  the  condemnation  of  property 
which  has  been  made  use  of  for  the  purpose  of  defrauding  the  rev- 
enue. Examples  of  this  are  vessels  illegally  registered  or  owned,  or 
employed  in  smuggling  or  other  illegal  traffic ;  distilleries  or  breweries 
illegally  carried  on  or  operated ;  and  buildings  standing  upon  or 
near  the  boundary  line  between  the  United  States  and  another  country, 
and  used  as  depots  for  smuggling  goods.  In  all  these  cases,  however, 
the  forfeiture  was  decreed  by  judicial  proceeding.  But  where  the 
property  is  of  little  value,  and  its  use  for  the  illegal  purpose  is  clear, 
the  Legislature  may  declare  it  to  be  a  nuisance,  and  subject  to  sum- 
mary abatement.  Instances  of  this  are  the  power  to  kill  diseased 
cattle ;  to  pull  down  houses  in  the  path  of  conflagrations ;  the  de- 
struction of  decayed  fruit  or  fish  or  unwholesome  meats,  of  infected 
clothing,  obscene  books  or  pictures,  or  instruments  which  can  only 
be  used  for  illegal  purposes.     While  the  Legislature  has  no  right  ar- 


Ch.  6)  ADMINISTRATIVE   EXECUTION.  265 

bitrarily  to  declare  that  to  be  a  nuisance  which  is  clearly  not  so,  a 
good  deal  must  be  left  to  its  discretion  in  that  regard ;  and,  if  the 
object  to  be  accomplished  is  conducive  to  the  public  interests,  it  may 
exercise  a  large  liberty  of  choice  in  the  means  employed.  Railway 
Co.  V.  Hunt,  50  N.  J.  Law,  308,  12  Atl.  697;  Blazier  v.  Miller.  10 
Hun,  435;  Mouse's  Case,  12  Coke,  63;  Stone  v.  Mayor,  25  Wend. 
(N.  Y.)  173 ;  Print  Works  v.  Lawrence,  21  N.  J.  Law,  248 ;  Id.,  23 
N.  J.  Law,  590,  57  Am.  Dec.  420. 

It  is  not  easy  to  draw  the  line  between  cases  where  property  il- 
legally used  may  be  destroyed  summarily  and  where  judicial  pro- 
ceedings are  necessary  for  its  condemnation.  If  the  property  were  of 
great  value,  as,  for  instance,  if  it  were  a  vessel  employed  for  smug- 
gling or  other  illegal  purposes,  it  would  be  putting  a  dangerous  power 
in  the  hands  of  a  custom  officer  to  permit  him  to  sell  or  destroy  it  as 
a  public  nuisance,  and  the  owner  would  have  good  reason  to  complain 
of  such  act  as  depriving  him  of  his  property  without  due  process  of 
law.  But  where  the  property  is  of  trifling  value,  and  its  destruction 
is  necessary  to  effect  the  object  of  a  certain  statute,  we  think  it  is 
within  the  power  of  the  Legislature  to  order  its  summary  abatement. 
For  instance,  if  the  Legislature  should  prohibit  the  killing  of  fish  by 
explosive  shells,  and  should  order  the  cartridges  so  used  to  be  de- 
stroyed, it  would  seem  like  belittling  the  dignity  of  the  judiciary  to 
require  such  destruction  to  be  preceded  by  a  solemn  condemnation  in 
a  court  of  justice.  The  same  remark  might  be  made  of  the  cards, 
chips,  and  dice  of  a  gambling  room. 

The  value  of  the  nets  in  question  was  but  $15  apiece.  The  cost  of 
condemning  one  (and  the  use  of  one  is  as  illegal  as  the  use  of  a  dozen) 
by  judicial  proceedings  would  largely  exceed  the  value  of  the  net,  and 
doubtless  the  state  would,  in  many  cases,  be  deterred  from  executing 
the  law  by  the  expense.  They  could  only  be  removed  from  the  wa- 
ter with  difficulty,  and  were  liable  to  injury  in  the  process  of  removal. 
The  object  of  the  law  is  undoubtedly  a  beneficent  one,  and  the  state 
ought  not  to  be  hampered  in  its  enforcement  by  the  application  of  con- 
stitutional provisions  which  are  intended  for  the  protection  of  sub- 
stantial rights  of  property.  It  is  evident  that  the  efficacy  of  this  stat- 
ute would  be  very  seriously  impaired  by  requiring  every  net  illegally 
used  to  be  carefully  taken  from  the  water,  carried  before  a  court  or 
magistrate,  notice  of  the  seizure  to  be  given  by  publication,  and  reg- 
ular judicial  proceedings  to  be  instituted  for  its  condemnation. 

There  is  not  a  state  in  the  Union  which  has  not  a  constitutional  pro- 
vision entitling  persons  charged  with  crime  to  a  trial  by  jury,  and 
yet  from  time  immemorial  the  practice  has  been  to  try  persons  charged 
with  petty  offenses  before  a  police  magistrate,  who  not  only  passes 
upon  the  question  of  guilt,  but  metes  out  the  proper  punishment.  This 
has  never  been  treated  as  an  infraction  of  the  Constitution,  though 
technically  a  person  may  in  this  way  be  deprived  of  his  liberty  without 
the  intervention  of  a  jury.     Callan  v.  Wilson,  127  U.  S.  540,  8  Sup. 


266  ADMINISTRATIVE   POWER   AND   ACTION.  (Part    1 

Ct.  1301,  32  L.  Ed.  223,  and  cases  cited.  So,  the  summary  abate- 
ment of  nuisances  without  judicial  process  or  proceeding  was  well 
known  to  the  common  law  long  prior  to  the  adoption  of  the  constitu- 
tion, and  it  has  never  been  supposed  that  the  constitutional  provision 
in  question  in  this  case  was  intended  to  interfere  with  the  established 
principles  in  that  regard. 

Nor  is  a  person  whose  property  is  seized  under  the  act  in  question 
without  his  legal  remedy.  If,  in  fact,  his  property  has  been  used  in 
violation  of  the  act,  he  has  no  just  reason  to  complain;  if  not,  he  may 
replevy  his  nets  from  the  officer  seizing  them,  or,  if  they  have  been 
destroyed,  may  have  his  action  for  their  value.  In  such  cases  the 
burden  would  be  upon  the  defendant  to  prove  a  justification  under 
the  statute.  As  was  said  by  the  Supreme  Court  of  New  Jersey  in 
a  similar  case  (Print  Works  v.  Lawrence,  21  N.  J.  Law,  248,  259)  : 
"The  party  is  not,  in  point  of  fact,  deprived  of  a  trial  by  jury.  The 
evidence  necessary  to  sustain  the  defense  is  changed.  Even  if  the 
party  were  deprived  of  a  trial  by  jury,  the  statute  is  not,  therefore, 
necessarily  unconstitutional."  Indeed,  it  is  scarcely  possible  that  any 
actual  injustice  could  be  done  in  the  practical  administration  of  the 
act. 

It  is  said,  however,  that  the  nets  are  not  in  themselves  a  nuisance, 
but  are  perfectly  lawful  acts  of  manufacture,  and  are  ordinarily  used 
for  a  lawful  purpose.  This  is,  however,  by  no  means  a  conclusive 
answer.  Many  articles — such,  for  instance,  as  cards,  dice,  and  other 
articles  used  for  gambling  purposes — are  perfectly  harmless  in  them- 
selves, but  may  become  nuisances  by  being  put  to  an  illegal  use,  and 
in  such  cases  fall  within  the  ban  of  the  law,  and  may  be  summarily 
destroyed.  It  is  true  that  this  rule  does  not  always  follow  from  the 
illegal  use  of  a  harmless  article.  A  house  may  not  be  torn  down  be- 
cause it  is  put  to  an  illegal  use,  since  it  may  be  as  readily  used  for  a 
lawful  purpose  (Ely  v.  Supervisors,  36  N.  Y.  297)  ;  but,  where 
minor  articles  of  personal  property  are  devoted  to  such  use,  the  fact 
that  they  may  be  used  for  a  lawful  purpose  would  not  deprive  the 
Legislature  of  the  power  to  destroy  them.  The  power  of  the  Legis- 
lature to  declare  that  which  is  perfectly  innocent  in  itself  to  be  unlaw- 
ful is  beyond  question  (People  v.  West,  106  N.  Y.  293,  12  N.  E. 
610,  60  Am.  Rep.  452) ;  and  in  such  case  the  Legislature  may  annex  to 
the  prohibited  act  all  the  incidents  of  a  criminal  offense,  including  the 
destruction  of  property  denounced  by  it  as  a  public  nuisance. 

In  Weller  v.  Snover,  42  N.  J.  Law,  341,  it  was  held  that  a  fish 
warden  for  a  county,  appointed  by  the  governor,  had  the  right,  under 
an  act  of  the  Legislature,  to  enter  upon  land  and  destroy  a  fish  basket 
constructed  in  violation  of  the  statute,  together  with  the  materials 
of  which  it  was  composed,  so  that  it  might  not  again  be  used.  It  was 
stated  in  that  case  that,  "after  a  statute  has  declared  an  invasion  of 
a  public  right  to  be  a  nuisance,  it  may  be  abated  by  the  destruction  of 
the  object  used  to  effect  it.     The  person  who,  with  actual  or  construe- 


Ch.  •'))  ADMINISTRATIVE    EXECUTION.  267 

tive  notice  of  the  law,  sets  up  such  nuisance,  cannot  sue  the  officer 
vvhose  duty  it  has  been  made,  by  the  statute,  to  execute  its  provisions." 
So,  in  WilHams  v.  Blackwall,  2  Hurl.  &  C.  33,  the  right  to  take  pos- 
session of  or  destroy  any  engine  placed  or  used  for  catching  salmon  in 
contravention  of  law  was  held  to  extend  to  all  persons,  and  was  not 
limited  to  conservators  or  officers  appointed  under  the  act. 

It  is  true  there  are  several  cases  of  a  contrary  purport.  Some  of 
these  cases,  however,  may  be  explained  upon  the  ground  that  the 
property  seized  was  of  considerable  value.  leck  v.  Anderson,  57  Cal. 
■J.51,  40  Am.  Rep.  115,  boats  as  well  as  nets;  Dunn  v.  Burleigh,  63  Me. 
:34,  teams  and  supplies  in  lumbering;  King  v.  Hayes,  80  Me.  206,  13 
Atl.  882,  a  horse.  In  others  the  court  seems  to  have  taken  a  more 
technical  view  of  the  law  than  the  necessities  of  the  case  or  an  ade- 
quate protection  of  the  owner  required.  Lowry  v.  Rainwater,  70  Mo. 
152,  35  Am.  Rep.  420;  State  v.  Robbins,  124  Ind.  308,  24  N.  E.  978, 
8  L.  R.  A.  438 ;   Ridgeway  v.  West,  GO  Ind.  371. ^^ 

Upon  the  whole,  we  agree  with  the  Court  of  Appeals  in  holding  this 
act  to  be  constitutional,  and  the  judgment  of  the  Supreme  Court  is 
therefore  affirmed. 

Mr.  Chief  Justice  Fuller  (dissenting).  In  my  opinion  the  legisla- 
tion in  question,  so  far  as  it  authorizes  the  summary  destruction  of 
fishing  nets  and  prohibits  any  action  for  damages  on  account  of  such 
destruction,   is  unconstitutional. 

Fishing  nets  are  in  themselves  articles  of  property  entitled  to  the 
protection  of  the  law,  and  I  am  unwilling  to  concede  to  the  Legis- 
lature of  a  state  the  power  to  declare  them  public  nuisances,  even  when 
put  to  use  in  a  manner  forbidden  by  statute,  and  on  that  ground  to 
justify  their  abatement  by  seizure  and  destruction  without  process, 
notice,  or  the  observance  of  any  judicial  form. 

The  police  power  rests  upon  necessity  and  the  right  of  self-protec- 
tion, but  private  property  cannot  be  arbitrarily  invaded  under  the  mere 
guise  of  police  regulation,  nor  forfeited  for  the  alleged  violation  of 
law  by  its  owner,  nor  destroyed  by  way  of  penalty  inflicted  upon 
him,  without  opportunity  to  be  heard. 

It  is  not  doubted  that  the  abatement  of  a  nuisance  must  be  limited  to 
the  necessity  of  the  occasion,  and,  as  the  illegal  use  of  fishing  nets 
would  be  terminated  by  their  withdrawal  from  the  water  and  the 
public  be  fully  protected  by  their  detention,  the  lack  of  necessity  for 
the  arbitrary  proceedings  prescribed  seems  to  me  too  obvious  to  be 
ignored.  Nor  do  I  perceive  that  the  difficulty  which  may  attend  their 
removal,  the  liability  to  injury  in  the  process,  and  their  comparatively 
small  value  ordinarily,  affect  the  principle,  or  tend  to  show  their  sum- 
mary destruction  to  be  reasonably  essential  to  the  suppression  of  the 
illegal  use.     Indeed,  I  think  that  that  argument  is  to  be  deprecated 

16  See,  also,  Edson  v.  Crangle,  62  Ohio  St.  40,  56  X.  E.  647  (1000)  ;  Dunn 
V.  Burleigh,  62  Me.  24  (1873). 


2G8 


ADMINISTRATIVE   POWER  AND   ACTION. 


(Part  1 


as  weakening-  the  importance  of  the  preservation,  without  impairment 
in  ever  so  slight  a  degree,  of  constitutional  guaranties. 

I  am,  therefore,  constrained  to  withhold  my  assent  to  the  judgment 
just  announced,  and  am  authorized  to  say  that  Mr.  Justice  Field  anc 
Mr.  Justice  Brewer  concur  in  this  dissent.^''. 


17  Compare  Colon  v^  Lisk.  153  N.  Y.  188,  47  N.  E.  302.  00  Am.  St.  Rep.  GOg 
(1807). 

See.  also.  Fisher  v.  McGirr.  1  Grav  (Mass.)  1.  61  Am.  Dec.  HSl  (18r,4)! 
Lincoln  V.  Smith,  27  Vt.  328  (1855);  Bridge  Street,  etc.,  Co.  v.  Ilogadone' 
150  ISIich.  638.  114  N.  W.  917  (1008) ;    Freund,  Police  Powers,  §§  525-527. 


PART  II 
RELIEF  AGAINST  ADMINISTRATIVE  ACTION 


CHAPTER  VII 
ACTIONS  TO  RECOVER  DAMAGES  OR  MONEY 


SECTION  33.— AGAINST  OFFICERS— JUDGES 


LANGE  V.  BENEDICT. 

(Court  of  Appeals  of  New  York,  1878.     73  N.  Y.  12,  29  Am.  Rep.  80.) 

FoLGER,  J.^  The  plaintiff  has  brought  an  action  against  the  de- 
fendant for  false  imprisonment,  and  detention  in  prison.  He  alleges 
that  it  was  wrongful  and  willful,  without  just  cause  or  provocation. 
He  does  not  allege  that  it  was  malicious  or  corrupt.  The  complaint 
in  the  action  sets  out  the  facts  in  extenso  upon  which  the  plaintiff 
relies.  To  this  the  defendant  has  demurred,  stating  three  causes  of 
demurrer ;  but  the  one  cause  relied  upon  is  that  the  complaint  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action. 

It  is  well,  therefore,  to  state  with  some  particularity  the  facts  which 
are  alleged,  or  are  conceded.  In  October,  1873,  the  defendant  was 
judge  of  the  District  Court  for  the  United  States  of  the  Eastern  Dis- 
trict of  New  York.  As  such,  by  virtue  of  an  act  of  Congress,  he  pre- 
sided at  and  held  the  Circuit  Court  of  the  United  States  for  the  South- 
ern District  of  New  York  for  the  October  term  of  that  year.  The 
plaintiff  was  at  that  term  arraigned  upon  an  indictment  of  twelve 
counts,  the  general  purport  of  which  was  that  he  had  stolen,  embezzled, 
or  appropriated  to  his  own  use,  certain  mail-bags,  the  property  of  the 
United  States,  of  the  value  of  twenty-five  dollars.  He  was  tried  upon 
the  indictment.  The  verdict  of  the  jury  was,  generally,  that  the  plain- 
tiff was  guilty,  and  that  the  value  of  the  mail-bags  was  less  than  twen- 
ty-five dollars.  He  was  indicted  under  an  act  of  Congress,  which  de- 
clared the  offense  and  affixed  the  punishment.  By  that  act,  if  the 
value  of  the  mail-bags  taken  was  found  to  be  less  than  twenty-five 
dollars,  the  punishment  for  the  offense  was   a  fine  of   $200  or  im- 

1  Only  a  portion  of  this  case  is  printed. 

(269) 


270  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

prisonnient  for  one  year.  The  defendant,  sitting-  as  sucli  judge  and 
holding  that  court  at  that  term,  passed  judgment  upon  the  plaintiff, 
and  sentenced  him  to  pay  a  fine  of  $200,  and  to  be  imprisoned  for  one 
year.  It  is  manifest  that  the  punishment  thus  imposed  was  more  than 
that  affixed  to  the  offense  by  the  act  of  Congress.  The  plaintiff  paid 
to  the  clerk  of  the  United  States  Circuit  Court,  intending  it  in  full 
payment  of  the  fine  so  imposed,  the  sum  of  $200.  This  was  done  on 
the  -Ith  day  of  November,  1873,  and  during  the  same  term  of  the  court ; 
and  the  clerk  made  certificate  that  that  sum  was  then  on  deposit  in  the 
registry  of  that  court.  The  clerk  paid  the  money  into  the  office  of  the 
Assistant  Treasurer  of  the  United  States,  in  New  York  City,  in  that 
circuit,  to  the  credit  of  the  Treasurer  of  the  United  States,  as  the  fine 
thus  imposed.  There  is  no  direct  allegation  in  the  complaint  that  the 
plaintiff  was  imprisoned  under  that  sentence.  There  is  an  allegation 
that  during  the  same  term  of  that  court  a  writ  of  habeas  corpus  was 
granted  and  returned  into  that  court,  in  which  the  imprisonment  of 
the  plaintiff  was  made  to  appear.  It  may  be  taken  as  conceded,  how- 
ever, that  the  plaintiff  was  actually  in  prison  for  the  space  of  five  days 
after  the  pronouncing  of  that  sentence,  and  before  further  proceedings 
were  had.  At  the  same  term  of  that  court,  the  defendant  sitting  and 
holding  that  court,  and  as  the  judge  thereof,  on  the  return  of  that  writ 
vacated  and  set  aside  the  sentence  above  set  forth,  and  at  the  same  time, 
and  as  a  part  of  the  same  judicial  act  and  order,  passed  judgment  anew 
upon  the  plaintiff,  and  resentenced  him  to  be  imprisoned  for  the  term 
of  one  year.  Under  this  action  of  the  defendant  the  plaintiff  was  im- 
prisoned, which  is  the  alleged  wrongful  imprisonment  and  detention 
of  him  by  the  defendant. 

Judicial  proceedings  were  afterwards  had  in  behalf  of  the  plaintiff, 
the  end  of  which  was  that  the  Supreme  Court  of  the  United  States  ad- 
judged the  resentence,  above  stated  to  have  been  pronounced,  without 
authority,  and  discharged  the  plaintiff  from  his  imprisonment.  It  does 
not  appear  that  the  defendant  was  a  party  to  the  proceedings  in  the  Su- 
preme Court,  or  was  heard  or  represented  there.  On  this  state  of  facts 
the  plaintiff  insists  that  the  defendant  is  liable  to  him  in  damages.  The 
defendant  claims  that  the  facts  show  that  all  which  he  did  he  did  as  a 
United  States  judge,  and  that  the  judicial  character  in  which  he  acted 
protects  him  from  personal  responsibility. 

In  our  judgment,  the  question  between  the  parties  is  brought  to 
what,  in  words  at  least,  is  a  very  narrow  issue :  Did  the  defendant  im- 
pose the  second  sentence  as  a  judge;  or,  although  he  was  at  the  mo- 
ment of  right  upon  the  bench,  and  authorized  and  empowered  to  exer- 
cise the  functions  of  a  judge,  was  the  act  of  resentencing  the  plaintiff 
so  entirely  without  jurisdiction,  or  so  beyond  or  in  excess  of  the  juris- 
diction which  he  then  had  as  a  judge,  as  that  it  was  an  arbitrary  and 
unlawful  act  of  a  private  person?  A  narrow  issue,  but  not  to  be  easily 
determined  to  the  satisfaction  of  a  cautious  inquirer.     *     *     * 

The  general  rule  which  applies  to  all  such  cases,  and  which  is  to  be 


« 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR   MONEY.  271 

observed  in  this,  has  been  in  olden  times  stated  thus :  Such  as  are  by 
law  made  judges  of  another  shall  not  be  criminally  accused,  or  made  li- 
able to  an  action  for  what  they  do  as  judges;  to  which  the  Year  Books 
(43  Edw.  Ill,  9;  9  Edw.  1\',  3)  are  cited  in  Floyd  v.  Barker,  12  Coke, 
26.  The  converse  statement  of  it  is  also  ancient :  Where  there  is  no 
jurisdiction  at  all,  there  is  no  judge.  The  proceeding  is  as  nothing. 
Perkin  v.  Proctor,  2  Wilson,  382-384,  citing  the  Marshalsea  Case,  10 
Coke,  65-76,  which  says:  "Where  he  has  no  jurisdiction,  non  est 
judex."  It  has  been  stated  thus,  also:  No  action  will  lie  against  a 
judge,  acting  in  a  judicial  capacity,  for  any  errors  which  he  may  com- 
mit, in  a  matter  wdthin  his  jurisdiction.  Gwynne  v.  Pool,  Lutw.  290. 
It  has  been,  in  modern  days  carried  somewhat  further,  in  the  terms  of 
the  statement :  Judges  of  superior  or  general  jurisdiction  are  not  lia- 
ble to  civil  actions  for  their  judicial  acts,  even  when  such  acts  are  in 
excess  of  their  jurisdiction,  and  are  alleged  to  have  been  done  mali- 
ciously and  corruptly.    Bradley  v.  Fisher,  13  Wall.  351,  20  L.  Ed.  646.  • 

It  is  to  be  seen  that  in  these  different  modes  of  stating  the  principle 
there  abides  a  qualification.  To  be  free  from  liability  for  the  act,  it 
must  have  been  done  as  judge,  in  his  judicial  capacity.  It  must  have 
been  a  judicial  act.  So  it  always  remains  to  be  determined,  when  is 
an  act  done  as  judge,  in  a  judicial  capacity?  And  this  is  the  difficulty 
which  has  most  often  been  found  in  the  use  of  this  rule,  and  which  is 
present  here :  To  determine  when  the  facts  exist  which  call  into  play 
that  qualification. 

For  it  is  plain  that  the  fact  that  a  man  sits  in  the  seat  of  justice, 
though  having  a  clear  right  to  sit  there,  will  not  protect  him  in  every 
act  which  he  may  choose  or  chance  to  do  there.  Should  such  an  one, 
rightfully  holding  a  court  for  the  trial  of  civil  actions,  order  the  head 
of  a  bystander  to  be  stricken  off,  and  be  obeyed,  he  would  be  liable. 
Thus,  a  person  in  the  office  of  judge  of  the  ecclesiastical  court  in  Eng- 
land excommunicated  one  for  refusing  to  obey  an  order,  made  by  him, 
that  he  become  guardian  ad  litem  for  an  infant  son,  and  though  the 
order  was  made  in  a  matter  then  lawfully  before  the  court  for  adjudi- 
cation, and  of  which  he  as  judge  had  jurisdiction,  he  was  held  liable 
to  an  action.  Beaurain  v.  Sir  Wm.  Scott,  3  Campb.  388.  He  had  not, 
as  judge,  jurisdiction  of  the  person  to  whom  he  addressed  the  order. 
On  the  other  hand,  one  rightfully  holding  a  court  for  the  trial  of  a 
criminal  action  fined  and  imprisoned  a  juror,  for  that  he  did  not  bring 
in  a  verdict  of  guilty  against  one  on  trial  for  an  offense,  after  the  court 
had  directed  the  jury  that  such  a  verdict  was  according  to  the  law  and 
facts.  The  juror  was  discharged  from  imprisonment  on  habeas  cor- 
pus brought  in  his  behalf,  and  it  was  held  that  the  act  of  fining  and  im- 
prisoning him  was  unlawful,  inasmuch  as  there  was  no  allegation  of 
corruption  or  like  bad  conduct  against  the  juror.  The  juror  then 
brought  action  against  him  wdio  sat  as  judge  and  made  the  order  for 
the  fine  and  imprisonment,  but  took  nothing  thereby,  for  it  was  held 
that  the  judge  acted  judicially,  as  judge,  as  he  had  jurisdiction  of  the 


272  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

person  of  the  juror,  and  jurisdiction  of  the  subject-matter,  to  wit,  the 
matter  of  punishing  jurors  for  misbehavior  as  such,  and  that  his  judg- 
ment that  the  facts  of  that  case  warranted  him  in  inflicting  punish- 
ment was  a  judicial  error,  to  be  avoided  and  set  aside  in  due  course  of 
legal  proceedings,  for  which,  however,  he  was  not  personally  liable. 
Hammond  v.  Howell,  Recorder  of  London,  2  Mod.  218;  Bushell's 
Case,  Vaughan,  135.  So  a  judge  of  oyer  and  terminer  was  protected 
from  indictment  when  he  had  made  entry  of  record  that  some  were 
indicted  for  felony  before  him ;  whereas,  in  fact,  they  were  indicted 
for  trespass  only.     12  Coke,  25. 

Thus  it  appears  that  the  test  is  not  alone  that  the  act  is  done  while 
having  on  the  judicial  character  and  capacity,  nor  yet  is  it  alone  that 
the  act  is  not  lawful. 

We  have  seen,  too,  that  the  test  is  not  that  the  act  was  in  excess  of 
jurisdiction,  or  alleged  to  have  been  done  with  malice  and  corruptly; 
for,  even  if  it  is  such  an  act,  it  does  not  render  liable  the  doer  of  the 
act,  if  he  be  a  judge  of  a  court  of  general  or  superior  authority.  Brad- 
ley V.  Fisher,  supra. 

We  think  it  clear  that  there  is  no  liability  to  civil  action,  if  the  act 
was  done  "in  a  matter  within  his  jurisdiction,"  to  use  the  words  of 
Gwynne  v.  Pool,  supra.  Those  words  mean  that,  when  the  person  as- 
sumed to  do  the  act  as  judge,  he  had  judicial  jurisdiction  of  the  per- 
son acted  upon,  and  of  the  subject-matter  as  to  which  it  was  done.  Ju- 
risdiction of  the  person  is  when  the  citizen  acted  upon  is  before  the 
judge,  either  constructively  or  in  fact,  by  reason  of  the  service  upon 
him  of  some  process  known  to  the  law,  and  which  has  been  duly  is- 
sued and  executed.  What  is  meant  by  jurisdiction  of  the  subject-mat- 
ter we  have  had  occasion  to  consider  lately  in  Hunt  v.  Hunt,  72  N.  Y. 
217,  28  Am.  Rep.  129.  It  is  not  confined  within  the  particular  facts, 
which  must  be  shown  before  a  court  or  a  judge,  to  make  out  a  specific 
and  immediate  cause  of  action.  It  is  as  extensive  as  the  general  or  ab- 
stract question,  which  falls  within  the  power  of  the  tribunal  or  officer 
to  act  concerning. 

Our  idea  will  be  illustrated  by  a  reference  to  Groenvelt  v.  Burwell,  1 
Ld.  Raym.  454.  There  the  defendants,  as  censors  of  a  college  of  phy- 
sicians, had  imposed  punishment  on  the  plaintiff  for  what  they  ad- 
judged was  malpractice  by  him.  He  brought  his  action.  They  pleaded 
the  charter  of  the  college,  giving  them  power  to  make  by-laws  for  the 
government  of  all  practitioners  in  medicine  in  London,  and  to  over- 
look them  and  to  examine  their  medicines  and  prescriptions,  and  to 
punish  malpractice  by  fine  and  imprisonment ;  that  they  had,  in  the 
exercise  of  that  power,  adjudged  the  plaintifif  guilty  of  mala  praxis, 
and  fined  him  twenty  pounds,  and  ordered  him  imprisoned  twelve 
months,  nisi,  etc.  It  was  held  that  the  defendants  had  "jurisdiction 
over  the  person  of  the  plaintiff,  inasmuch  as  he  practiced  medicine  in 
London,  and  over  the  subject-matter,  to  wit,  the  unskillful  adminis- 
tration of  physic."    That  is  the  language  of  Holt,  C.  J.,  in  that  case. 


Ch.  T)  ACTIONS   TO   RECOVER   DAMAGES   OR   MONEY.  273 

And  because  the  defendants  had  power  to  hear  and  punish,  and  to  fine 
and  imprison,  it  was  held  that  they  were  judges  of  record,  and,  be- 
cause judges,  not  Hable  for  the  act  of  fining  and  imprisoning.  See, 
also,  Ackerley  v.  Parkinson,  3  Maul.  &  Selw.  411. 

It  is  the  general  abstract  thing  which  is  the  subject-matter.  The 
power  to  inquire  and  adjudge  whether  the  facts  of  each  particular  case 
make  that  case  a  part  or  an  instance  of  that  general  thing — that  power 
is  jurisdiction  of  the  subject-matter.  Thus  in  Hammond  v.  Howell, 
supra,  the  defendant  was  saved  from  liability  to  civil  action,  inasmuch 
as  he  had  as  judge  jurisdiction  of  the  subject-matter  of  punishing 
jurors  for  a  misdemeanor  upon  the  panel.  He  made  an  error  in  de- 
ciding that  the  facts  of  that  case  made  an  instance  of  that  subject- 
matter.  But  the  jurors  were  within  his  jurisdiction  of  their  persons, 
and  he  had  jurisdiction  of  the  subject-matter,  and  his  error  was  a  ju- 
dicial error — an  act  done  quatenus  judge,  not  an  act  as  Howell,  the 
private  person,  though  it  was  an  act  contrary  to  law,  grievous  and  op- 
pressive upon  the  citizen. 

The  inquiry,  then,  at  this  stage  of  our  consideration  of  the  case,  is 
this:  Whether  the  defendant,  sitting  upon  the  bench  of  the  Circuit 
Court,  and  being  on  that  occasion  de  jure  et  de  facto  the  Circuit  Court, 
and  having  as  such  jurisdiction  of  all  persons  by  law  within  the  power 
of  that  court,  and  jurisdiction  of  all  subject-matters  within  its  cogni- 
zance, whether  he  had  jurisdiction  of  the  person  of  the  plaintiff,  and 
of  any  subject-matter  wherefrom  he  had  authority  to  hear  and  ad- 
judge whether  the  facts  in  the  case  of  the  plaintiff,  as  then  presented 
to  him,  fell  within  any  of  those  subject-matters.  It  is  not  the  inquiry 
whether  the  act  then  done  as  the  act  of  the  court  w'as  erroneous  and 
illegal.  That  is  but  another  form  of  saying  whether  it  could  or  could 
not  be  lawfully  done  as  a  court  by  the  person  then  sitting  as  the  judge 
thereof.  It  is  whether  that  court  then  had  the  judicial  power  to  consid- 
er and  pass  upon  the  facts  presented,  and  to  determine  and  adjudge  that 
such  an  act  based  upon  them  would  be  lawful  or  unlawful.     '■^.    *     * 

It  is  true  that  the  United  States  Supreme  Court  upon  a  certain  state 

of  facts  before  it,  and  in  a  proceeding  by  certiorari   to  which  this 

defendant  was  not  a  party,  and  in  which  he  was  not  heard  by  that 

court,  reached  the  conclusion  that  the  second  sentence  of  the  Circuit 

[  Court  was  pronounced  without  authority,  and  discharged  the  plaintiff 

I  from  his  imprisonment  thereunder.     Ex  parte  Lange,   18  Wall.  163, 

i  21  L.  Ed.  872.     In  the  prevailing  opinion  given  in  the  case  are  re- 

!  peated  expressions  to  the  eft'ect  that  the  power  of  the  Circuit  Court  to 

punish  further  than  the  first  sentence,  was  gone ;    fhat  its  power  to 

I  punish  for  that  offense  was  at  an  end  when  the  first  sentence  was 

i  inflicted,  and  the  plaintiff  had  paid  the  $200  and  laid  in  prison  five 

;  days ;    that  its  power  was  exhausted ;    that  its   further  exercise  was 

■  prohibited;    that  the  power  to  render  any  further  judgment  did  not 

I  exist;   that  its  authority  was  ended. 

Fr.Adm.Law — 18 


274  RELIEF  AGAINST  ADMIXISTRATIVE   ACTION.  (Part    2 

It  is  claimed  from  these  expressions  that  the  force  of  the  decision 
in  that  case  is  that  the  defendant  in  pronouncing  the  second  sentence    , 
upon  the  plaintiff  did  not  act  as  a  judge.     It  is  plausible  to  say  that    j 
if  an  act,  sought  to  be  defended  as  a  judicial  act,  has  been  pronounced    j 
without  authority  and  void,  it  could  not  have  been  done  judicially,    j 
But  we  have  yet  to  learn  that  the  eminent  court,  which  used  that    i 
language  in  adjudging  upon   the  case  made  upon  that  writ,  would    ' 
hold  that  the  defendant  did  not  act  as  a  judge  in  pronouncing  the 
judgment  which  was  deemed  without  power  to  sustain  it.     The  opin- 
ion also  says :   "Judgment  may  be  erroneous  and  not  void ;   and  it  may    i 
be  erroneous  because  it  is  void.     The  distinctions  between  void  and   i< 
voidable  judgments  are  very  nice,  and  they  may  fall  under  the  one   ' 
class  or  the  other,  as  they  are  regarded  for  different  purposes." 

We  do  not  think  that  learned  court  would  disregard  the  reasoning 
of  Howell's  Case,  supra,  and  others  like  unto  it.  Yet  in  Bushell's 
Case,  supra,  he  was  discharged  on  habeas  corpus,  on  the  ground  that 
Howell  as  judge  had  no  power  or  authority  to  fine  or  imprison  him 
for  the  cause  set  up.  It  was  called  "a  wrongful  commitment"  (1  Mod. 
184),  as  contrasted  with  "an  erroneous  judgment"  (12  Mod.  381, 
392)  ;  and  yet  when  Howell  was  called  to  answer  in  a  civil  action  for 
the  act,  it  was  held  that  though  without  authority  it  was  judicial. 
In  Bushell's  Case,  1  Mod.  119,  Hale,  C.  J.,  said:  "The  habeas  corpus 
and  the  writ  of  error,  though  it  doth  make  the  judgment  void,  doth  not 
make  the  awarding  of  the  process  void  to  that  purpose" — i.  e.,  of 
an  action  against  the  judge — "and  the  matter  was  done  in  a  court  of 
justice,"  he  continued.  So  is  the  comment  upon  that  case,  in  Yates 
V.  Lansing,  5  Johns.  390:  "It  had  jurisdiction  of  the  cause  because 
it  had  power  to  punish  a  misdemeanor  in  a  juror,  though  in  the  case 
before  the  court  the  recorder  made  an  erroneous  judgment  in  con- 
sidering the  act  of  the  juror  as  amounting  to  a  misdemeanor,  when 
in  fact  it  was  no  misdemeanor."  2  Mod.  218.  So  in  Ackerley  v. 
Parkinson,  supra,  the  defendant  was  held  protected  though  the  cita- 
tion issued  by  him  was  considered  as  a  nullity,  on  the  ground  that  • 
the  court  had  a  general  jurisdiction  over  the  subject-matter. 

Let  it  be  conceded,  at  this  point,  that  the  law  is  now  declared  that 
the  act  of  the  defendant  was  without  authority  and  was  void,  yet  it 
was  not  so  plain  as  then  to  have  been  beyond  the  realm  of  judicial 
discussion,  deliberation  and  consideration,  as  is  apparent  from  the 
fact  that  four  judges,  other  than  the  defendant,  acting  as  judges,  . 
have  agreed  with  him  in  his  view  of  the  law. 

He  was,  in  fact,  sitting  in  the  place  of  justice.;  he  was  at  the  very 
time  of  the  act  a  court;  he  was  bound  by  his  duty  to  the  public  and 
to  the  plaintiff  to  pass  as  such  upon  the  question  growing  out  of  the 
facts  presented  to  him,  and  as  a  court  to  adjudge  whether  a  case  had 
arisen  in  which  it  was  the  demand  of  the  law  that,  on  the  vacating  of 
the  unlawful  and  erroneous  sentence  or  judgment  of  the  court,  an- 
other sentence  or  judgment  could  be  pronounced  upon  the  plaintiff'. 


Ch.  ?)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  275 

So  to  adjudge  was  a  judicial  act,  done  as  a  judge,  as  a  court,  though 
the  adjudication  was  erroneous,  and  the  act  based  upon  it  was  with- 
out authority  and  void.  Where  jurisdiction  over  the  subject  is  in- 
vested by  law  in  the  judge,  or  in  the  court  which  he  holds,  the  manner 
and  extent  in  which  the  jurisdiction  shall  be  exercised  are  generally  as 
much  questions  for  his  determination  as  any  other  involved  in  the  case, 
although  upon  the  correctness  of  his  determination  in  those  particu- 
lars, the  validity  of  his  judgment  may  depend.  Ackerley  v.  Parkinson, 
supra.  For  such  an  act,  a  person  acting  as  judge  therein  is  not  liable 
to  civil  or  criminal  action.  The  power  to  decide  protects,  though 
the  decision  be  erroneous.  See  Garnett  v.  Farrand,  6  B.  &  C. 
Oil.     *     ^=     * 

This  act  of  the  defendant  was,  then,  one  in  excess  of,  or  beyond, 
the  jurisdiction  of  the  court.  And  though,  when  courts  of  special 
and  limited  jurisdiction  exceed  their  powers,  the  whole  proceeding  is 
coram  non  judice,  and  void,  and  all  concerned  are  liable,  this  has 
never  been  carried  so  far  as  to  justify  an  action  against  a  judge  of 
a  superior  court,  or  one  of  general  jurisdiction,  for  an  act  done 
by  him  in  a  judicial  capacity.  Yates  v.  Lansing,  supra;  Bradley 
V.  Fisher,  supra;  Randall  v.  Brigham,  T  Wall.  523,  19  L.  Ed. 
285.     '^     *     - 

The  case  turns  upon  a  question  more  easily  stated  than  it  is  deter- 
mined:  Was  the  act  of  the  defendant  done  as  a  judge?  Our  best 
reflection  upon  it,  aided  by  the  reasonings  and  conclusions  of  many 
more  cases  than  we  have  cited,  has  brought  us  to  the  conclusion  that 
as  he  had  jurisdiction  of  the  person  and  of  the  subject-matter,  and 
as  his  act  was  not  without  the  inception  of  jurisdiction,  but  was  one 
no  more  than  in  excess  of  or  beyond  jurisdiction,  the  act  was  judicial. 
We  are  not  unmindful  of  the  considerations  of  the  protection  of  the 
liberty  of  the  person,  and  of  the  staying  of  a  tendency  to  arbitrary 
exercise  of  power,  urged  with  so  much  eloquence  by  the  learned  and 
accomplished  counsel  for  the  appellant.  Nor  are  we  of  the  mind  of  the 
court  in  2  J\Iod.  218,  220,  that  "these  are  mighty  words  in  sound,  but 
nothing  to  the  matter."  They  are  to  the  matter,  and  not  out  of  place 
in  such  a  discussion  as  this.  Nor  have  we  been  disposed  to  outweigh 
those  considerations  with  that  other  class,  which  sets  forth  the  need  of 
judicial  independence,  and  of  its  freedom  from  vexation  on  account 
of  official  action,  and  of  the  interest  that  the  public  have  therein. 
See  Bradley  v.  Fisher,  supra;  Taaffe  v.  Downs,  in  note  to  Calder  v. 
Halket,  3  Moore,  P.  C.  C.  28,  41,  51,  52.  These  are  not  antag- 
onistic principles;  they  are  simply  countervailing.  As  with  all  other 
rules  which  act  in  the  affairs  of  men,  preponderance  may  not  be  fondly 
given  to  one  to  the  disregard  of  the  other ;  each  should  have  its  due 
weight  yielded  to  it,  for  thus  only  is  a  safe  equipoise  reached. 

We  have  arrived  at  our  decision  upon  what  we  hold  to  be  long  and 
well  established  principles  applied  to  the  peculiar  facts  oi  this  inter- 
esting case. 


276  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2        * 


The  judgment  of  the  General  Term  should  be  affirmed.     All  concur, 
except  AndrivWS,  J.,  absent. 
Judgment  affirmed.- 


GROVE  V.  VAN  DUYN. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1882.     44  N.  J.  Law,  G54,  43 
Am.   Kep.  412.) 

Beasley,  C.  J.  Most  of  the  general  principles  of  law  pertaining 
to  that  branch  of  this  controversy  which  relates  to  the  alleged  liability 
of  the  defendant  in  this  suit,  who  was  a  justice  of  the  peace,  are  so 
completely  settled  as  not  to  be  open  to  discussion.  The  doctrine  that 
an  action  will  not  lie  against  a  judge  for  a  wrongful  commitment,  or 
for  an  erroneous  judgment,  or  for  any  other  act  made  or  done  by 
him  in  his  judicial  capacity,  is  as  thoroughly  established  as  are  any 
other  of  the  primary  maxims  of  the  law.  Such  an  exemption  is  ab- 
solutely essential  to  the  very  existence,  in  any  valuable  form,  of  the 
judicial  office  itself;  for  a  judge  could  not  be  either  respected  or  in- 
dependent if  his  motives  for  his  official  actions  or  his  conclusions,  no 
matter  how  erroneous,  could  be  put  in  question  at  the  instance  of 
every  malignant  or  disappointed  suitor.  Hence  we  find  this  judicial 
immunity  has  been  conferred  by  the  laws  of  every  civilized  people. 
That  it  exists  in  this  state  in  its  fullest  extent  has  been  repeatedly  de- 
clared by  our  own  courts.  Such  was  pronounced  by  the  Supreme 
Court  to  be  the  admitted  principle  in  the  cases  of  Little  v.  Moore,  4  N. 
J.  Law,  75,  7  Am.  Dec.  574,  Taylor  v.  Doremus,  16  N.  J.  Law,  473,  and 
Mangold  v.  Thorpe,  33  N.  J.  Law,  134,  and  by  this  court  in  Loftus 
V.    Fraz,   43   N.   J.   Law,   667. 

To  this  extent  there  is  no  uncertainty  or  difficulty  whatever  in  the 
subject.  But  the  embarrassment  arises  where  an  attempt  is  made  to 
express  with  perfect  definiteness  when  it  is  that  acts  done  by  a  judge, 
and  which  purport  to  be  judicial  acts,  are  such  within  the  meaning 
of  the  rule  to  which  reference  has  just  been  made. 

It  is  said  everywhere  in  the  text-books  and  decisions  that  the  of- 
ficer, in  order  to  entitle  himself  to  claim  the  immunity  that  belongs 
to  judicial  conduct,  must  restrict  his  action  within  the  bounds  of  his 
jurisdiction,  and  jurisdiction  has  been  defined  to  be  "the  authority 
of  the  law  to  act  officially  in  the  particular  matter  in  hand."  Cooley 
on  Torts,  417.  But  these  maxims,  although  true  in  a  general  wa}-, 
are  not  sufficiently  broad  to  embrace  the  principle  of  immunity  that 
appertains  to  a  court  or  judge  exercising  a  general  authority.  Their 
defect  is  that  they  leave  out  of  the  account  all  those  cases  in  which 

2  As  to  English  law,  see  1  Beven  on  Neglisence,  (2d  Ed.)  p.  275,  and  esr.o- 
cially  Kemp  v.  Neville.  10  C.  B.  (N.  S.)  523  (1861). 

American  cases:  Yates  v.  Lansing.  5  Johns.  (N.  Y.)  282  (1809);  Randall 
V.  Brigham,  7  Wall.  523,  19  L.  Ed.  285  (1SG8)  ;  Bradley  v.  Fisher,  13  AVall. 
335,  20  L.  Ed.  GIG  (1871). 


I 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  277 

the  officer  in  the  discharge  of  his  public  duty  is  bound  to  decide  wheth- 
er or  not  a  particular  case,  under  the  circumstances  as  presented  to 
him,  is  within  his  jurisdiction,  and  he  falls  into  error  in  arriving  at 
his  conclusion.  In  such  instance,  the  judge,  in  point  of  fact  and  law, 
has  no  jurisdiction,  according  to  the  definition  just  given,  over  "the 
particular  matter  in  hand,"  and  yet,  in  my  opinion,  very  plainly  he  is 
not  responsible  for  the  results  that  wait  upon  his  mistake.  And  it  is 
upon  this  precise  point  that  we  find  confusion  in  the  decisions. 

There  are  certainly  cases  which  hold  that  if  a  magistrate,  in  the 
regular  discharge  of  his  functions,  causes  an  arrest  to  be  made  under 
his  warrant  on  a  complaint  which  does  not  contain  the  charge  of  a 
crime  cognizable  by  him,  he  is  answerable  in  an  action  for  the  injury 
that  has  ensued.^  But  I  think  these  cases  are  deflections  from  the 
correct  rule ;  they  make  no  allowance  for  matters  of  doubt  and  diffi- 
culty. If  the  facts  presented  for  the  decision  of  the  justice  are  of 
uncertain  signification  with  respect  to  their  legal  effect,  and  he  de- 
cides one  way,  and  exercises  a  cognizance  over  the  case,  and  if  the 
superior  court  in  which  the  question  arises  in  a  suit  against  the  jus- 
tice differs  with  him  on  this  close  legal  question,  is  he  open,  by  reason 
of  his  error,  to  an  attack  by  action?  If  the  officer's  exemption 
from  liability  is  to  depend  on  the  question  whether  he  had  juris- 
diction over  the  particular  case,  it  is  clear  that  such  officer  is  often 
liable  under  such  conditions  because  the  higher  court,  in  deciding 
a  doubtful  point  of  law,  may  have  declared  that  some  element  was 
wanting  in  the  complaint  which  was  essential  to  bring  this  case 
within  the  judicial  competency  of  the  magistrate.  But  there  are 
many  decisions  which,  perhaps,  without  defining  any  very  clear  rule 
on  the  subject,  have  maintained  that  the  judicial  officer  was  not  liable 
under  such  conditions. 

The  very  copious  brief  of  the  counsel  of  the  defendants  abounds  in 
such  illustrations.  As  an  example,  we  may  refer  to  the  old  case  of 
Gwynne  v.  Poole,  2  Lutw.  387,  in  which  it  was  held  that  the  justice 
was  justified  because  he  had  reason  to  believe  that  he  had  jurisdic- 
tion, although  there  was  an  arrest  in  an  action  which  arose  out  of  the 
justice's  jurisdiction.  This  case  has  been  since  approved  in  Kemp 
V.  Neville,  10  C.  B.  (N.  S.)  550.  Here,  if  the  test  of  official  liability 
had  been  the  mere  fact  of  the  right  to  take  cognizance  over  the  par- 
ticular matter  in  hand,  considered  in  the  light  of  strict  legal  rules, 
this  decision  would  have  been  the  opposite  of  what  it  is.  In  the  same 
way  the  subject  is  elucidated  in  Brittain  v.  Kinnaird,  1  B.  &  B.  432, 
the  facts  being  a  conviction  by  a  justice  of  a  person  of  having  gun- 
powder in  a  certain  boat,  a  special  act  authorizing  the  detention  of 
any  suspected  boat,  and  when  the  magistrate  was  sued  in  trespass 
for  an  illegal  conviction,  it  was  declared  that  the  plaintiff,  in  order  to 
show  the  defendants'  want  of  cognizance  over  the  proceedings  lead- 
ing to  the  conviction,  could  not  give  evidence  that  the  craft  in  ques- 

3  See  Century  Digest,  Justices  of  tlie  Peace,  §§  36,  37,  39. 


278  RELIEF  AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

tioii  was  a  vessel  and  not  a  boat,  because  the  justice  had  judicially  de- 
termined that  point.  And  in  this  case  likewise  the  test  of  jurisdiction 
in  the  magistrate  in  point  of  fact  and  of  law  was  rejected,  an  inquiry 
into  the  authority  by  force  of  which  the  proceedings  had  been  taken 
being  disallowed,  for  the  reason  that  such  question  had  been  passed 
upon  by  the  magistrate  himself,  the  point  being  before  him  for  ad- 
judication. 

The  same  doctrine  was  promulged  in  explicit  and  forcible  terms 
by  Mr.  Justice  Field,  delivering  the  opinion  of  the  Supreme  Court 
of  the  United  States,  in  the  case  of  Bradley  v.  Fisher,  13  Wall.  335, 
20  L.  Ed.  646,  this  being  his  language :  "If  a  judge  of  a  criminal 
court,  invested  with  general  criminal  jurisdiction  over  offenses  com- 
mitted within  a  certain  district,  should  hold  a  particular' act  to  be  a 
public  offense  which  it  is  not,  and  proceed  to  the  arrest  and  trial  of 
a  party  charged  with  such  act,  -■'  '^'  *  no  personal  liability  to 
civil  action  for  such  acts  would  attach  to  the  judge,  although  those 
acts  would  be  in  excess  of  his  jurisdiction,  or  of  the  jurisdiction  of 
the  court  held  by  him,  for  these  are  particulars  for  his  judicial  con- 
sideration, whenever  this  general  jurisdiction  over  the  subject-matter 
is  invoked." 

These  decisions,  in  my  estimation,  stand  upon  a  proper  footing, 
and  many  others  of  the  same  kind  might  be  referred  to;  but  such 
course  is  not  called  for,  as  it  must  be  admitted  that  there  is  much  con- 
trariety of  results  in  this  field,  and  the  references  above  given  are  am- 
ply sufficient  as  illustrations  for  my  present  purposes.  The  assertion,  I 
think,  may  be  safely  made  that  the  great  weight  of  judicial  opinion  is 
in  opposition  to  the  theory  that  if  a  judge,  as  a  matter  of  law  and 
fact,  has  not  jurisdiction  over  the  particular  case,  that  thereby,  in 
all  cases,  he  incurs  the  liability  to  be  sued  by  any  one  injuriously  af- 
fected by  his  assumption  of  cognizance  over  it.  The  doctrine  that 
an  officer  having  general  powers  of  judicature  must,  at  his  peril,  pass 
upon  the  question,  which  is  often  one  difficult  of  solution,  whether 
the  facts  before  him  place  the  given  case  under  his  cognizance,  is  as  un- 
reasonable as  it  is  impolitic.  Such  a  regulation  would  be  applicable 
alike  to  all  courts  and  to  all  judicial  officers  acting  under  a  general  au- 
thority, and  it  would  thus  involve  in  its  liabilities  all  tribunals  except 
those  of  last  resort.  It  would  also  subject  to  suit  persons  participating 
in  the  execution  of  orders  and  judgments  rendered  in  the  absence  of 
a  real  ground  of  jurisdiction.  By  force  of  such  a  rule,  if  the  Su- 
preme Court  of  this  state,  upon  a  writ  being  served  in  a  certain 
manner,  should  declare  that  it  acquired  jurisdiction  over  the  defend- 
ant, and  judgment  should  be  entered  by  default  against  him,  and  if, 
upon  error  brought,  this  court  should  reverse  such  judgment  on  the 
ground  that  the  service  of  the  writ  in  question  did  not  give  the  in- 
ferior court  jurisdiction  in  the  case,  no  reason  can  be  assigned  why 
the  justices  of  the  Supreme  Court  should  not  be  liable  to  suit  for  any 
injurious  consequence  to  the  defendant  proceeding  from  their  judg- 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  279 

ment.  As  I  have  said,  in  my  judgment,  the  jurisdictional  test  of  the 
measure  of  judicial  responsibility  must  be  rejected. 

Nevertheless  it  must  be  conceded  that  it  is  also  plain  that  in  many 
cases  a  transgression  of  the  boundaries  of  his  jurisdiction  by  a  judge 
will  impose  upon  him  a  liability  to  an  action  in  favor  of  the  person 
who  has  been  injured  by  such  excess.  If  a  magistrate  should,  of  his 
own  motion,  without  oath  or  complaint  being  made  to  him,  on  mere 
hearsay,  issue  a  warrant  and  cause  an  arrest  for  an  alleged  larceny, 
it  cannot  be  doubted  that  the  person  so  illegally  imprisoned  could 
seek  redress  by  a  suit  against  such  officer. *  It  would  be  no  legal  an- 
swer for  the  magistrate  to  assert  that  he  had  a  general  cognizance 
over  criminal  offenses,  for  the  conclusive  reply  would  be  that  this 
particular  case  was  not,  by  any  form  of  proceeding,  put  under  his 
authority. 

From  these  legal  conditions  of  the  subject  my  inference  is  that  the 
true  general  rule  with  respect  to  the  actionable  responsibility  of  a 
judicial  officer  having  the  right  to  exercise  general  powers  is  that 
he  is  so  responsible  in  any  given  case  belonging  to  a  class  over  which 
he  has  cognizance,  unless  such  case  is  by  complaint  or  other  proceed- 
ing put  at  least  colorably  under  his  jurisdiction.  Where  the  judge  is 
called  upon  by  the  facts  before  him  to  decide  whether  his  authority 
extends  over  the  matter,  such  an  act  is  a  judicial  act,  and  such  officer 
is  not  liable  in  a  suit  to  the  person  affected  by  his  decision,  whether 
such  decision  be  right  or  wrong.  But  when  no  facts  are  present, 
or  only  such  facts  as  have  neither  legal  value  nor  color  of  legal  value 
in  the  affair,  then,  in  that  event,  for  the  magistrate  to  take  jurisdic- 
tion is  not,  in  any  manner,  the  performance  of  a  judicial  act,  but 
simply  the  commission  of  an  unofficial  wrong.  This  criterion  seems 
a  reasonable  one.  It  protects  a  judge  against  the  consequences  of 
every  error  of  judgment,  but  it  leaves  him  answerable  for  the  com- 
mission of  wrong  that  is  practically  willful.  Such  protection  is  nec- 
essary to  the  independence  and  usefulness  of  the  judicial  officer,  and 
such  responsibility  is  important  to  guard  the  citizen  against  official 
oppression. 

The  application  of  the  above-stated  rule  to  this  case  must,  obviously, 
result  in  a  judgment  affirming  the  decision  of  the  circuit  judge.  There 
was  a  complaint,  under  oath,  before  this  justice,  presenting  for  his 
consideration  a  set  of  facts  to  which  it  became  his  duty  to  apply 
the  law.  The  essential  things  there  stated  were  that  the  plaintiff,  in 
combination  with  two  other  persons,  "with  force  and  arms,"  entered 
upon  certain  lands,  and  "with  force  and  arms  did  unlawfully  carry 
away  about  four  hundred  bundles  of  cornstalks,  of  the  value,"  etc., 
and  were  engaged  in  carrying  other  cornstalks  from  said  lands.  By 
a  statute  of  this  state  (Revision,  p.  244,  par.  99)  it  is  declared  to  be 
an  indictable  offense  "if  any  person  shall   willfully,  unlawfully  and 

*  See  Tracy  v.  Williams,  4  Conn.  107,  10  Am.  Dec.  102  (1821). 


280  BELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

maliciously"  set  fire  to  or  burn,  carry  off  or  destroy  any  barrack, 
cock,  crib,  rick  or  stack  of  hay,  corn,  wheat,  rye,  barley,  oats  or  grain 
of  any  kind,  or  any  trees,  herbage,  growing  grass,  hay  or  other 
vegetables,  etc.  Now,  although  the  misconduct  described  in  the  com- 
plaint is  not  the  misconduct  described  in  this  act,  nevertheless  the 
question  of  their  identity  was  colorably  before  the  magistrate,  and  it 
was  his  duty  to  decide  it;  and  under  the  rule  above  formulated  he  is 
not  answerable  to  the  person  injured  for  his  erroneous  application  of 
the  law  to  the  case  that  was  before  him. 

As  to  the  other  defendant,  all  he  did  was  to  make  his  complaint 
on  oath  before  the  justice,  setting  forth  the  facts  truly,  and  for  such 
an  act  he  could  not  be  held  liable  for  the  judicial  action  which  ensued, 
even  if  such  action  had  been  extrajudicial.  But  as  the  case  was,  as 
we  have  seen,  brought  within  the  jurisdiction  of  the  judicial  officer, 
neither  this  defendant  nor  any  other  person  could  be  treated  as  a  tres- 
passer for  his  co-operation  in  procuring  a  decision  and  commitment 
which  were  valid  in  law,  until  they  had  been  set  aside  by  a  superior 
tribunal. 

Let  the  judgment  be  affirmed.^ 


SECTION  34.— SAME— AGAINST  ADMINISTRATIVE  OFFI- 
CERS, ERROR  AND  ILLEGALITY 


MOSTYN  V.  FABRIGAS. 

(Court  of   King's   Bench,   1774.     Oowp.    IGl.) 

Lord  MansfieIvD.*^  This  is  an  action  brought  by  the  plaintiff  against 
the  defendant  for  an  assault  and  false  imprisonment ;  and  part  of  the 
complaint  made  being  for  banishing  him  from  the  Island  of  Minorca 
to  Carthagena  in  Spain,  it  was  necessary  for  the  plaintiff,  in  his  dec- 
laration, to  take  notice  of  the  real  place  where  the  cause  of  action 

5  See  Queen  v.  Wood.  5  El.  &  Bl.  49  (1855),  post,  p.  534.  1 

French  Code  of  Civil  Procedure,  art.  505:  ■' 

Judges  may  be  sued  in  the  following  cases : 

(1)  If  there  is  malice,  fraud,  or  corruption  alleged  to  have  been  committed 
in  the  course  of  the  examination,  or  in  rendering  judgment. 

(2)  If  the  right  to  sue  is  expressly  given  by  law. 

(3)  If  the  law  declares  the  judges  liable  in  damages. 

(4)  If  there  is  denial  of  justice. 

Decisions  of  German  Imperial  Court,  vol.  38,  p.  838: 

A  judge  hi  deciding  causes  must  not  be  exposed  to  the  risk  of  being  held 
responsible  for  errors  in  rendering  judgment.  He  may  be  held  liable  where 
he  iierverts  justice  deliberately.  Otherwise  be  would  be  deru-ived  <>*-•  n\e  in- 
dependence indispensably  necessary  to  the  performance  of  his  functions. 

«  The  statement  of  facts  and  portions  of  the  opinion  are  omitted. 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  281 

arose.  Therefore  he  has  stated  it  to  be  in  Minorca,  with  a  videHcet, 
at  London,  in  the  parish  of  St.  Mary  le  Bow,  in  the  ward  of  Cheap. 
Had  it  not  been  for  that  particular  requisite,  he  might  have  stated  it 
to  have  been  in  the  county  of  Middlesex.  To  this  declaration  the 
defendant  put  in  two  pleas :  First,  "not  guilty ;"  secondly,  that  he 
was  governor  of  Minorca  by  letters  patent  from  the  crown,  that  the 
plaintiff  was  raising  a  sedition  and  mutiny,  and  that  in  consequence 
of  such  sedition  and  mutiny,  he  did  imprison  him,  and  send  him  out 
of  the  island,  which  as  governor,  being  invested  with  all  the  priv- 
ileges, rights,  etc.,  of  governor,  he  alleges  he  had  a  right  to  do.  To 
this  plea  the  plaintiff  does  not  demur,  nor  does  he  deny  that  it  would 
be  a  justification  in  case  it  were  true;  but  he  denies  the  truth  of 
the  fact,  and  puts  in  issue  whether  the  fact  of  the  plea  is  true.  The 
plea  avers  that  the  assault  for  which  the  action  was  brought  arose  in 
the  island  of  Minorca,  out  of  the  realm  of  England,  and  nowhere'  else. 
To  this  the  plaintiff  has  made  no  new  assignment,  and  therefore  by 
his  replication  he  admits  the  locality  of  the  cause  of  action. 

Thus  it  stood  on  the  pleadings.  At  the  trial  the  plaintiff  went  into 
the  evidence  of  his  case,  and  the  defendant  into  evidence  of  his ;  but 
on  behalf  of  the  defendant  evidence  dift'erent  from  the  facts  alleged 
in  this  plea  of  justification  was  given  to  show  that  the  Arraval  of 
St.  Phillips,  where  the  injury  complained  of  was  done,  was  not  within 
either  of  the  four  precincts,  but  is  a  district  of  itself  more  immediately 
under  the  power  of  the  governor,  and  that  no  judge  of  the  island  can 
exercise  jurisdiction  there,  without  a  special  appointment  from  him. 
Upon  the  facts  of  the  case  the  judge  left  it  to  the  jury,  who  found 
a  verdict  for  the  plaintiff,  with  £3,000  damages.  The  defendant  has 
tendered  a  bill  of  exceptions,  upon  which  bill  of  exceptions  the  cause 
comes  before  us;  and  the  great  difficulty  I  have  had  upon  both  the 
arguments  has  been  to  be  able  clearly  to  comprehend  what  the  ques- 
tion is  which  is  meant  seriously  to  be  brought  before  the  court. 

If  I  understand  the  counsel  for  Governor  Mostyn  right,  what  the}- 
say  is  this :  The  plea  of  not  guilty  is  totally  immaterial,  and  so  is  the 
plea  of  justification,  because  upon  the  .plaintiff's  own  showing  it  ap- 
pears, 1st,  that  the  cause  of  action  arose  in  Minorca,  out  of  the  realm ; 
2dly,  that  the  defendant  was  governor  of  Minorca,  and  by  virtue  of 
such  his  authority  imprisoned  the  plaintiff.  From  thence  it  is  argued 
that  the  judge  who  tried  the  cause  ought  to  have  refused  any  evidence 
whatsoever,  and  to  have  directed  the  jury  to  find  for  the  defendant; 
and  three  reasons  have  been  assigned.  One,  insisted  upon  in  the 
former  argument,  was,  that  the  plaintiff,  being  a  Minorquin,  is  in- 
capacitated from  bringing  an  action  in  the  King's  courts  in  England. 
To  dispose  of  that  objection  at  once,  I  shall  only  say  it  is  wisely 
abandoned  to-day ;  for  it  is  impossible  there  ever  could  exist  a  doubt 
but  that  a  subject  born  in  Minorca  has  as  good  a  right  to  appeal  to 
the  King's  courts  of  justice  as  one  who  is  born  within  the  sound  of 
Bow  bell:   and  the  objection  made  in  this  case,  of  its  not  being  stated 


282  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

on  the  record  that  the  plaintiff  was  born  since  the  treaty  of  Utrecht, 
makes  no  difference. 

The  two  other  grounds  are:  1st.  That  the  defendant  being  gov- 
ernor of  Minorca,  is  answerable  for  no  injury  whatsoever  done  by 
him  in  that  capacity.  2dly.  That  the  injury  being  done  at  Minorca, 
out  of  the  realm,  is  not  cognizable  by  the  King's  courts  in  England. 

As  to  the  first,  nothing  is  so  clear  as  that  to  an  action  of  this  kind 
the  defendant,  if  he  has  any  justification,  must  plead  it;  and  there  is 
nothing  more  clear  than  that,  if  the  court  has  not  a  general  jurisdic- 
tion of  the  subject-matter,  he  must  plead  to  the  jurisdiction,  and  can- 
not take  advantage  of  it  upon  the  general  issue.  Therefore  by  the 
law  of  England,  if  an  action  be  brought  against  a  judge  of  record 
for  an  act  done  by  him  in  his  judicial  capacity,  he  may  plead  that  he 
did  it  as  judge  of  record,  and  that  will  be  a  complete  justification.  So 
in  this  case,  if  the  injury  complained  of  had  been  done  by  the  de- 
fendant as  a  judge,  though  it  arose  in  a  foreign  country  where  the 
technical  distinction  of  a  court  of  record  does  not  exist,  yet  sitting 
as  a  judge  in  a  court  of  justice,  subject  to  a  superior  review,  he  would 
be  within  the  reason  of  the  rule  which  the  law  of  England  says  shall 
be  a  justification;  but  then  it  must  be  pleaded.  Here  no  such  mat- 
ter is  pleaded,  nor  is  it  even  in  evidence  that  he  sat  as  judge  of  a 
court  of  justice.  Therefore  I  lay  out  of  the  case  everything  relative 
to  the  Arraval  of  St.  Phillip's. 

The  first  point,  then,  upon  this  ground,  is  the  sacredness  of  the 
defendant's  person  as  governor.  If  it  were  true  that  the  law  makes 
him  that  sacred  character,  he  must  plead  it  and  set  forth  his  commis- 
sion as  a  special  matter  of  justification,  because  prima  facie  the  court 
has  jurisdiction.  But  I  will  not  rest  the  answer  upon  that  only.  It 
has  been  insisted,  by  way  of  distinction,  that  supposing  an  action 
will  lie  for  an  injury  of  this  kind  committed  by  one  individual  against 
another,  in  a  country  beyond  the  seas,  but  within  the  dominion  of  the 
crown  of  England,  yet  it  shall  not  emphatically  lie  against  the  gov- 
ernor. In  answer  to  which  I  say  that  for  many  reasons,  if  it  did  not 
lie  against  any  other  man,  it  shall  most  emphatically  lie  against  the 
governor. 

In  every  plea  to  the  jurisdiction,  you  must  state  another  jurisdic- 
tion ;  therefore,  if  an  action  is  brought  here  for  a  matter  arising  in 
Wales,  to  bar  the  remedy  sought  in  this  court,  you  must  show  the 
jurisdiction  of  the  court  of  Wales;  and  in  every  case  to  repel  the  ju- 
risdiction of  the  King's  court,  you  must  show  a  more  proper  and 
more  sufficient  jurisdiction;  for  if  there  is  no  other  mode  of  trial, 
that  alone  will  give  the  King's  courts  a  jurisdiction.  Now  in  this  case 
no  other  jurisdiction  is  shown,  even  so  much  as  in  argument.  And  if 
the  King's  courts  of  justice  cannot  hold  plea  in  such  case,  no  other 
court  can  do  it.  For  it  is  truly  said  that  a  governor  is  in  the  nature 
of  a  viceroy;  and  therefore  locally,  during  his  government,  no  civil 
or  criminal  action  will  lie  against  him.     The  reason  is  because  upon 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  283 

]M-ocess  he  would  be  subject  to  imprisonment  J  But  here  the  injury 
is  said  to  have  happened  in  the  Arraval  of  St.  PhilHp's,  where  with- 
out his  leave  no  jurisdiction  can  exist.  If  that  be  so,  there  can  be  no 
remedy  whatsoever,  if  it  is  not  in  the  King's  courts,  because  when  he 
is  out  of  the  government,  and  is  returned  wath  his  property  into  this 
country,  there  are  not  even  his  effects  left  in  the  island  to  be  attached. 

It  does  not  follow  from  hence  that,  let  the  cause  of  action  arise 
where  it  may,  a  man  is  not  entitled  to  make  use  of  every  justification 
his  case  will  admit  of,  which  ought  to  be  a  defense  to  him.  'If  he  has 
acted  right  according  to  the  authority  with  which  he  is  invested,  he 
must  lay  it  before  the  court  by  way  of  plea,  and  the  court  will  exer- 
cise their  judgment  whether  it  is  a  sufficient  justification  or  not.  In 
this  case,  if  the  justification  had  been  proved,  the  court  might  have 
considered  it  as  a  sufficient  answer;  and,  if  the  nature  of  the  case 
would  have  allowed  of  it,  might  have  adjudged  that  the  raising  a 
mutiny  was  a  good  ground  for  such  a  summary  proceeding.  I  can 
conceive  cases  in  time  of  war  in  which  a  governor  would  be  justified, 
though  he  acted  very  arbitrarily,  in  which  he  could  not  be  justified 
in  time  of  peace.  Suppose,  during  a  siege  or  upon  an  invasion  of 
Minorca,  the  governor  should  judge  it  proper  to  send  an  hundred  of 
the  inhabitants  out  of  the  island  from  motives  of  real  and  genuine 
expediency ;  or  suppose  upon  a  general  suspicion  he  should  take  people 
up  as  spies ;  upon  proper  circumstances  laid  before  the  court,  it  would 
be  very  fit  to  see  whether  he  had  acted  as  the  governor  of  a  garrison 
ought,  according  to  the  circumstances  of  the  case.     *    *     * 

Therefore,  in  every  light  in  which  I  see  the  subject,  I  am  of  opin- 
ion that  the  action  holds  emphatically  against  the  governor,  if  it  did 
not  hold  in  the  case  of  any  other  person.  If  so,  he  is  accountable  in 
this  court  or  he  is  accountable  nowhere ;  for  the  King  in  council  has  no 
jurisdiction.  Complaints  made  to  the  King  in  council  tend  to  remove 
the  governor,  or  to  take  from  him  any  commission,  which  he  holds 
during  the  pleasure  of  the  crown.  But  if  he  is  in  England,  and  holds 
nothing  at  the  pleasure  of  the  crown,  they  have  no  jurisdiction  to  make 
reparation,  by  giving  damages,  or  to  punish  him  in  any  shape  for 
the  injury  committed.  Therefore  to  lay  down  in  an  English  court  of 
justice  such  a  monstrous  proposition  as  that  a  governor,  acting  by 
virtue  of  letters  patent  under  the  great  seal,  is  accountable  only  to 
God  and  his  own  conscience,  that  he  is  absolutely  despotic,  and  can 
spoil,  plunder,  and  afifect  his  Majesty's  subjects,  both  in  their  liberty 
and  property,  with  impunity,  is  a  doctrine  that  cannot  be  maintained. 

In  Lord  Bellamont's  Case,  2  Salk.  625,  cited  by  Mr.  Peckham,  a  mo- 
tion was  made  for  a  trial  at  bar,  and  granted,  because  the  Attorney 
General  was  to  defend  it  on  the  part  of  the  King,  which  shows  plainly 
that  such  an  action  existed.  And  in  Way  v.  Yally,  6  Mod.  195,  Jus- 
tice Powell  says  that  an  action  of  false  imprisonment  has  been  brought 

7  See  Hill  v.  Bigge,  3  Moore,  P.  C.  4Go,  481  (1841),  contra. 


284  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part     i 

here  against  a  governor  of  Jamaica,  for  an  imprisonment  here,  and 
the  laws  of  the  country  were  given  in  evidence.  The  governor  of 
Jamaica  in  that  case  never  thought  that  he  was  not  amenable,  lie 
defended  himself,  and  possibly  showed,  by  the  laws  of  the  country, 
an  act  of  the  assembly  which  justified  that  imprisonment,  and  the  court 
received  it  as  they  ought  to  do.  For  whatever  is  a  justification  in 
the  place  where  the  thing  is  done  ought  to  be  a  justification  where  the 
cause  is  tried. 

I  remember,  early  in  my  time,  being  counsel  in  an  action  brought  1j\ 
a  carpenter  in  the  train  of  artillery,  against  Governor  Sabine,  who  wa> 
governor  of  Gibraltar,  and  who  had  barely  confirmed  the  sentence  of 
a  court-martial,  by  which  the  plaintiff  had  been  tried,  and  sentenced 
to  be  whipped.  The  governor  was  very  ably  defended,  but  nobod\- 
ever  thought  that  the  action  would  not  lie ;  and,  it  being  proved  at 
the  trial  that  the  tradesmen  who  followed  the  train  were  not  liable 
to  martial  law,  the  court  were  of  that  opinion,  and  the  jury  accord- 
ingly fouud  the  defendant  guilty  of  the  trespass,  as  having  had  a 
share  in  the  sentence,  and  gave  £500.  damages.    *    *    * 

Judgment  affirmed.^ 


BASSETT  V.  GODSCHALL  et  al. 

(Court  of  Coininon  Tleas,  1770.     3  Wilson,  121.) 

Action  on  the  case  for  refusing  to  receive  from  plaintiff  a  certificate 
of  character  tendered  upon  an  application  for  a  license  to  keep  a  com- 
mon inn  and  alehouse. 

WiLMOT,  Chief  Justice.  The  legislature  hath  intrusted  the  justices 
of  peace  with  a  discretionary  power  to  grant  or  refuse  licenses  for 
keeping  inns  and  alehouses;  if  they  abuse  that  power,  or  misbehave 
themselves  in  the  execution  of  their  office  or  authority,  they  are  an- 
swerable criminally,  by  way  of  information,  in  B.  R."     I  cannot  think 

8  See  Pollock.  Torts,  c.  IV,  1,  "Acts  of  State" ;  also  Musgrove  v.  Chnn 
Teeoug  Toy,  [1891]  A.  C.  272,  282,  283. 

As  to  statutes  for  protection  of  officers,  see  Cliitty,  Pleading,  I,  545,  54G; 
Public  Authorities  Protection  Act,  1803,  He,  &  57  Vict.  c.  Gl. 

Compare  Martin  v.  Mott,  12  Wheat.  10,  G  L.  Ed.  537  (1827),  post,  p.  .j4S- 
Wise  V.  Withers,  3  Cranch,  331,  2  I..  Ed.  457  (18(m;). 

There  seems  to  be  no  precedent  in  the  United  States  for  an  action  against 
a  chief  executive  (President  or  Governor)  during  his  term  of  office  to  recover 
damages  for  an  alleged  wrongful  act  done  in  his  official  capacity  or  in  con- 
nection with  his  office. 

For  such  an  action,  brought  after  the  expiration  of  the  term  of  office,  see 
Livingston  v.  Jefferson,  1  Brock.  203,  Fed.  Cas.  No.  8.411  (1811),  which  was, 
however,  dismissed  on  a  point  of  venue. 

For  actions  against  heads  of  departments,  see  Kendall  v.  Stokes.  3  TTnw. 
87,  11  L.  Ed.  500  (1845),  and  Spalding  v.  Vilas,  101  U.  S.  483,  IG  Sup.  Ct.  0;:i, 
40  L.  Ed.  780  (189G);  also  5  Ops.  Attys.  (4en.  750  (1823). 

0  As  to  criminal  liability,  see  Hex  v.  Williams.  3  Burr.  1317  (17G2)  ;  People 
y.  Norton,  7  Barb.   (N.  Y.)  477   (1840). 


I 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR   MONEY.  285 

a  justice  of  peace  is  answerable  in  an  action  to  every  individual  who 
asks  him  for  a  license  to  keep  an  inn  or  an  alehouse,  and  he  refuses 
to  grant  one ;  if  he  were  so,  there  would  be  an  end  of  the  commis- 
sion of  the  peace,  for  no  man  would  act  therein.  Indeed,  he  is  an- 
swerable to  the  public  if  he  misbehaves  himself,  and  willfully,  know- 
ingly and  maliciously  injures  or  oppresses  the  King's  subjects,  under 
color  of  his  office,  and  contrary  to  law ;  but  he  cannot  be  answerable 
to  every  individual,  touching  the  matter  in  question,  in  an  action.  Ev- 
ery plaintiff  in  an  action  must  have  an  antecedent  right  to  bring  it ; 
the  plaintiff  here  has  no  right  to  have  a  license,  unless  the  justices 
think  proper  to  grant  it,  therefore  he  can  have  no  right  of  action 
against  the  justices  for  refusing  it. 
Judgment  for  defendants.^'' 


PARTRIDGE  v.  GENERAL  COUNCIL  OF  MEDICAL  EDUCA- 
TION AND  REGISTRATION  OF  UNITED  KINGDOM. 

(Supreme  Court  of  Judicature,  Queen's  Beuch  Division,  1890. 
25  Q.  B.  D.  90.) 

Action  for  unlawfully  and  maliciously  causing  the  plaintiff"s  name 
to  be  removed  from  the  register  kept  under  the  Dentists'  Act,  1878. 

Lord  EsHER,  M.  R.  In  this  case  an  action  is  brought  against  the 
defendants  for  unlawfully  and  maliciously  removing  the  name  of  the 
plaintiff  from  the  dentists'  register.  I  think  that  the  learned  judge 
who  tried  the  case  must  be  taken  to  have  found  that  the  defendants 
acted  without  malice.  It  is  perfectly  clear  to  my  mind  that  his  finding- 
is  right,  and  that  in  doing  what  they  did  they  were  not  acting  mali- 
ciously, but  endeavoring  to  do  their  duty'  to  the  public  and  their  pro- 
fession. But  nevertheless,  it  it  clear  that,  in  doing  what  they  did  on 
this  occasion,  they  did  not  take  the  course  which  they  ought  to  have 
taken.  They  struck  off  the  plaintiff's  name  without  communicating 
with  him  or  giving  him  an  opportunity  of  being  heard.  When  the 
case  came  before  us  on  the  previous  occasion,^^  the  question  then 
being  whether  he  was  wrongly  struck  off  the  register,  we  said  they 
had  not  taken  the  proper  steps,  and  they  must  put  his  name  on  the 
register  again,  without  prejudice  to  the  question  whether  on  subse- 
quent inquiry  there  might  appear  to  be  proper  grounds  for  striking 
him  off  under  section  13  of  the  act.  But  the  question,  upon  an  ap- 
plication for  a  mandamus  to  have  his  name  reinserted  on  the  register, 
whether  they  acted  rightly  in  striking  him  off,  in  the  sense  that  they 
took  the  proper  steps,  is  quite  a  different  question  from  the  question 
whether  an  action  will  lie  against  them,  in  the  absence  of  malice,  for 
wrongfully  removing  his  name. 

10  Accord:    Halloran  v.  McOullougli,  G8  Ind.   179    (1879). 

11  See  Ex  parte  Partridge,  19  Q.  B.  D.  4G7   (1887). 


286  KELIEF   AGAINST  ADMINISTUATIVE   ACTION.  (Part    2 

The  question  now  is  whether  such  an  action  will  lie?  I  think  the 
defendants  were  intending,  in  what  they  did,  to  do  what  they  were 
entitled  to  do,  viz.,  to  perform  the  public  duties  imposed  upon  them 
by  the  act  for  the  protection  of  the  public  and  also  of  the  profession. 
There  are  two  sections,  apparently,  which  are  material  to  this  ques- 
tion, the  eleventh  and  the  thirteenth.  It  seems  to  me  that  the  thirteenth 
was  the  section  under  which  they  ought  to  have  acted,  if  there  was  any 
question  of  erasing  the  name  of  a  person  from  the  register  for  having 
acted  disgracefully  in  a  professional  respect.  But  I  think  that  in 
any  case  they  bona  fide  intended  to  act  under  the  act  of  Parliament 
which  gives  them  powers  as  to  the  register.  That  being  so,  the  ques- 
tion is  whether  they  were  acting  merely  ministerially.  Whether  they 
were  intending  to  act  under  section  11  only,  or  under  section  13  as 
well,  if  they  were  not  so  acting,  it  appears  to  me  that  in  the  absence 
of  malice  they  are  protected  from  an  action.  If  they  were  acting 
under  section  13,  I  think  the  functions  they  were  so  exercising  were 
clearly  judicial,  and  not  merely  ministerial,  and  that  they  would, 
therefore,  not  be  liable  to  an  action  for  the  erroneous  exercise  of 
those  functions  without  malice.  If  they  were  intending  to  do  what 
they  were  authorized  to  do  under  section  13,  but  were  advised  to  pro- 
ceed under  the  wrong  section,  I  think  they  would  not  be  liable  to  an 
action  for  acting  erroneously  under  a  wrong  section  of  the  act,  as  they 
intended  to  act  under  the  act  and  what  they  did  was  not  merely  min- 
isterial. 

But,  assuming  that  they  were  not  intending  to  exercise  the  func- 
tions given  by  section  13  at  all,  but  were  proceeding  solely  under  sec- 
tion 11,  without  regard  to  those  functions,  what  is  it  they  have  to  do 
under  that  section?  The  power  given  to  them  is  a  power  to  give  a 
special  direction  to  the  registrar.  They  have,  then,  given  a  special 
direction  to  the  registrar  to  erase  the  plaintiff's  name.  Is  giving  a 
special  direction  to  the  registrar  under  that  section  merely  a  ministerial 
act,  to  be  done  without  the  exercise  of  any  discretion  at  all?  I  do  not 
think  so.  I  think  it  is  clearly  discretionary.  Now  it  appears  to  me 
that  it  is  a  true  proposition  to  say  that,  when  a  public  duty  is  imposed 
by  act  of  Parliament  upon  a  body  of  persons,  which  duty  consists 
in  the  exercise  of  a  discretion,  it  cannot  be  said  that  the  exercise  of 
that  discretion  is  a  merely  ministerial  act.  If  what  the  defendants  did 
cannot  be  considered  to  have  been  merely  ministerial,  then  I  think,  for 
the  purposes  of  the  question  whether  they  are  protected  from  an  ac- 
tion, it  must  be  considered  as  judicial.  It  appears  to  me  that  a  body 
such  as  the  defendants  can  only  be  made  subject  to  an  action  for  things 
which  they  have  done  erroneously  without  malice  in  carrying  out  their 
duties  under  the  act,  if  it  can  be  shown  that  they  were  acting  merely 
ministerially. 

It  is  not  necessary  to  go  through  the  cases  that  have  been  cited  on 
the  subject.  They  seem  to  me  all  to  show  that  such  an  action  as  this 
cannot  be  maintained,  except  where  the  duty  intended  to  be  exercised 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  287 

IS  only  ministerial.  For  these  reasons  it  appears  to  me  that  this  ac- 
tion is  not  maintainable,  and  that  the  judgment  of  Hudleston,  B.,  was 
correct.^  ^ 


SEAMAN  V.  PATTEN. 

(Supreme   Court  of  New   York,    1805.     2  Caines,   312.) 

On  certiorari  to  the  justices'  court  in  the  city  of  New  York. 

It  appeared  from  the  return  that  the  action  below  was  brought 
against  the  now  plaintiff  to  recover  from  him,  as  inspector  general 
of  provisions,  twenty-five  dollars,  for  condemning,  as  unmerchantable, 
some  beef  belonging  to  the  present  defendant.  The  record  stated : 
That  at  the  trial  the  now  plaintiff  moved  for  a  nonsuit,  because  the 
barrel  containing  the  beef  had  not  been  branded  with  the  name  of  the 
maker,  according  to  the  directions  of  the  act ;  because,  also,  no  malice 
or  corruption  was  proved.  That  these  reasons  were  disallowed,  be- 
cause the  court  were  of  opinion,  on  the  first  point,  that  an  offer  by 
the  cooper,  or  his  authorized  agent,  to  brand  the  barrels,  and  a  re- 
fusal by  the  inspector  to  permit  them  to  be  branded,  were  equivalent 
to  a  branding;  and,  on  the  second,  because  it  was  not  necessary  to 
prove  malice  or  corruption,  to  sustain  the  action,  the  inspector  general 
being  liable  for  injuries  arising  from  want  of  skill. 

Error  having  been  assigned  on  each  of  these  grounds,  the  case  now 
came  before  the  court. 

Livingston,  J.,  delivered  the  opinion  of  the  court.  In  our  opinion 
the  judgment  rendered  on  this  verdict  is  erroneous,  and  must  be  re- 
versed. 

Without  denying  the  general  principle  (which  is  too  well  settled  to 
admit  of  controversy)  that  unless  the  Legislature  provide  for  the 
protection  of  officers  of  this  description,  they  act  at  their  peril,  al- 
though their  conduct  be  bona  fide,  and  according  to  the  best  of  their 
judgment,  there  are,  in  this  case,  sufficient  marks  of  distinction  to 
justify  our  not  adding  it  to  the  revolting  precedents  which  are  al- 
ready to  be  found  on  this  subject.  In  making  use  of  this  term,  I  do 
but  little  more  than  follow  the  example  of  most  judges  who  have 
been  called  on  to  enforce  a  rule  which  they  admit  to  be  a  hard  one, 
and  against  the  operation  of  which  modern  legislators,  unless  from 
oversight,  generally  take  care  to  guard.  The  whole  court,  in  the 
case  of  Warne  v.  Varley,  6  T.  R.  443,  seem  solicitous  to  discover 

12  Section  11  of  the  Dentists'  Act  provides  that  every  registrar,  shall  in  all 
respects,  in  the  exercise  of  his  discretion  and  duty  in  relation  to  any  register 
under  this  act.  conform  to  any  orders  made  by  the  general  council  under  this 
act,  and  to  any  special  directions  given  by  the  general  council.  Section  13 
provides  that  the  general  council  may  cause  inquiry  to  be  made  into  the  case 
of  a  person  alleged  to  be  liable  to  have  his  name  erased  from  the  register,  on 
proof  of  conviction  of  a  felony  or  misdemeanor,  or  of  infamous  or  disgrace- 
ful conduct. 


288  RELIEF   AGAINST  ADMINISTRATIVE   ACTION,  (Part    2 

some  ground  on  which  the  defendant,  who  had  acted  fairly  and  bona 
tide,  might  escape.  This  Habihty  was  first  enforced  against  officers 
who  acted  as  volunteers,  and  generally  received  a  portion  of  the  spoil. 
These  \v'ere  collectors  and  excise  officers,  who  were  neither  bound 
by  oath,  nor  enjoined  by  law,  to  make  seizures,  but  might  do  so  or 
not.  as  they  pleased.  Thus  in  Imlay  v.  Sands,  1  Caines,  566,  decided 
in  February  term,  1804,  the  defendant,  who  was  collector  of  the  port 
of  NevV  York,  in  seizing  a  vessel,  with  a  very  valuable  cargo,  was 
under  no  legal  injunction  to  do  so,  and  would  have  been  entitled  to  a 
very  considerable  share  of  the  proceeds  arising  from  confiscation.^^ 
In  such  case  there  is  no  rigor  in  letting  an  officer  act  at  his  peril,  and 
in  putting  his  justification  on  the  event.  But  when  persons  in  a  public 
capacity  act  upon  oath,  in  matters,  too,  which  require  skill  and  ex- 
perience, and  in  which  men  may  honestly  differ  in  opinion,  it  seems 
cruel  not  to  protect  them  when  they  conduct  themselves  with  integrity, 
and  without  abusing  their  authority,  or  manifesting  any  symptoms  of 
malice. 

But  this  alone,  if  the  case  of  Warne  v.  Varley  be  a  precedent,  affords 
no  justification.  Some  other  excuse,  then,  must  be  found  for  the 
plaintiff,  or  he  cannot  escape.  Let  us,  then,  see  whether,  in  the  terms 
of  the  law,  an  ample  justification  will  not  be  found,  and  such  a  one 
as  the  Court  of  King's  Bench  seemed  willing  to  admit  in  the  case 
just  mentioned.  The  defendant  there  pleaded  that  he  had  seized  the 
leather  because,  "in  his  judgment,  the  same  was  not  well  dried."  But 
the  act  of  Parliament  had  not  given  him  authority  to  seize  what,  in 
his  judgment,  was  not  sufficiently  dried,  but  only  generally  to  seize 
leather  of  that  description,  without  referring  to  his  judgment  at  all. 
If  it  had.  Lord  Kenyon  would  not  have  held  him  liable.  *Tt  seems 
reasonable,"  says  he,  "that  if  these  searchers  exercise  their  authorit}' 
bona  fide,  and  only  seize  such  leather  as  in  their  judgment  ought  to  be 
examined,  they  should  be  protected;  but  the  act  of  Parliament  af- 
fords them  no  such  protection."  From  this  mode  of  expression,  as 
well  as  from  the  reason  of  the  thing,  it  is  clear  that,  where  the  judg- 
ment or  opinion  of  the  officer  is  expressly  referred  to  by  law  as  the 
rule  of  his  conduct,  he  cannot,  and  ought  not,  to  be  answerable  for 
an  upright  use  of  it,  but  is  as  much  protected  by  a  clause  of  this  kind 
as  by  those  which  are  usually  introduced  for  this  purpose.  This  ref- 
erence will  be  found  throughout  the  law  under  which  Seaman  acted, 
and  must  have  been  made  to  prevent  his  being  harassed  by  demands  of 
this  nature.  Everything  almost  which,  as  inspector  general,  he  is  to 
do,  is  to  depend  on  his  judgment  or  opinion.  He  swears  "he  will 
faithfully  and  impartially,  according  to  the  best  of  his  ability,  perform 
his  duty,  without  any  willful  omission,  neglect,  or  delay  whatever." 

13  As  to  history  of  compensation  of  revenue  officers,  see  U.  S.  v.  Walker,  22 
How.  299,  16  L.  Ed.  382  (1859)  ;    also  1  Rev.  St.  N.  Y.  (1st  Ed.)  pp.  340,  356. 

For  early  ac-tion  of  trespass  against  customs  officers,  see  Hubert  Hall, 
Customs  Revenue.  II,  42. 


1 


Ch.  7)  ACTIONS  TO   RECOVER   DAMAGES   OR  MONEY.  289 

Is  it  not  a  little  extraordinary  that,  when  the  Legislature  exact  no 
more  of  a  man  than  an  exertion  of  his  best  abilities,  he  should  still 
be  responsible,  merely  because  another  may  have  more  ability  or 
capacity  than  himself? 

The  fourth  section  authorizes  him  to  remove  without  the  city  all 
such  beef  and  pork  as  shall  appear  to  him  to  be  in  danger  of  spoiling, 
etc.  Will  it  be  said  that  he  would  also  be  liable,  if  he  should  bona 
fide  order  any  of  these  articles  to  be  removed,  if  it  turned  out  that 
they  were  in  no  danger  of  spoiling?  Shall  it  be  his  duty  to  remove 
these  articles,  shall  he  swear  that  he  will  perform  his  duty,  nay,  shall 
he  be  liable  to  a  heavy  penalty  for  neglect,  and  shall  his  own  opinion  be 
made  the  only  criterion  of  the  necessity  or  propriety,  and  shall  he  not 
dare  to  exercise  it?  So  again,  in  the  same  section,  he  is  to  order  beef 
or  pork,  in  a  putrid  state,  to  be  removed,  if  in  his  opinion  the  removal 
be  necessary.  Surely  it  would  be  a  satisfactory  defense  to  an  action, 
on  this  part  of  the  statute,  to  say  that  the  removal  in  his  opinion  was 
necessary.  Why  vest  such  power  in  him,  as  a  security  for  the  health 
of  the  city,  if  he  be  not  to  use  it?  If  too  latitudinary,  the  Legislature, 
and  not  he,  is  to  blame. 

Again,  by  the  first  section  he  may  remove  certain  provisions,  if  in 
his  judgment  it  be  proper.  The  eleventh  section,  in  like  manner  (and 
this  applies  more  immediately  to  the  present  action),  declares  that 
the  barrels,  in  which  beef  shall  be  repacked  (which  must,  of  course, 
be  judged  of  before  they  can  be  inspected),  shall,  in  the  opinion  of 
the  inspector  general,  be  every  way  strong,  and  tight  enough  to  pre- 
vent the  pickle  from  leaking  out.  Now,  if  this  be  an  action  for  not 
inspecting  the  beef,  and  it  can  be  no  other,  notwithstanding-  the  in- 
accuracy of  the  return,  calling  it  an  action  for  condemning  the  prop- 
erty, which  the  inspector  could  not  do,  who  can  say  that  the  plaintiff 
was  of  opinion  that  the  barrel  was  as  tight  and  strong  as  it  ought  to 
be?  If  he  were  not,  it  was  his  duty,  however  incorrect  the  opinion 
may  have  been,  to  refuse  its  inspection ;  for  it  must  be  an  incontro- 
vertible position  that  when  by  law  it  is  made  the  duty  of  a  public 
agent,  however  high  or  low  his  station,  to  do  a  thing,  if  in  his  opinion 
certain  recjuisites  are  complied  with,  he  can  never  be  liable  for  omit- 
ting to  act  (which  it  is  attempted  to  make  him  here),  without  proving 
corruption,  malice,  or  some  misbehavior.  It  does  not  appear  why 
the  beef  was  refused.  It  may  have  been  for  the  very  cause  just  men- 
!  tioned,  which  would  be  a  complete  defense. 

But  if  the  inspector  proceeded  on  the  ground,  as  it  would  seem 
I  he  did,  of  the  barrel's  not  being  branded  with  the  name  of  the  person 
I  who  made  it,  he  was  also  justifiable.  The  sixteenth  section  is  explicit 
j  on  this  point,  and  it  is  admitted  no  such  brand  appeared.  An  offer 
I  to  brand  was  not  sufficient.  It  is  idle  to  say  that  the  inspector  general 
'  refused  to  let  it  be  done.  He  had  no  control  over  the  cooper,  or  the 
cask.    The  defendant  might  have  taken  it  away,  and  returned  it  prop- 

rR.ADM.LAW— 19 


290  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

erly  branded.  On  this  point  the  justices  were  also  mistaken.  The 
party,  to  entitle  his  beef  to  inspection,  should  have  taken  care  to  have 
put  it  in  the  state  required  by  law.  Until  that  was  done,  the  in- 
spector had  nothing  to  do  with  it,  or  with  his  offers.  But  if  the  cask 
had  teen  properly  branded,  the  inspector  had  a  right,  by  law,  if  he 
thought  proper  for  other  reasons,  to  refuse  its  inspection,  and  this  is 
the  ground  on  which  we  proceed. 

There  is  yet  another  distinction  between  this  action  and  those  which 
are  generally  brought  against  public  officers.  The  latter  are  almost  al- 
ways actions  for  some  tort,  such  as  seizing  the  plaintiff's  property, 
or  breaking  into  his  house,  or  the  like ;  whereas  this  is  an  attempt  to 
charge  him,  not  for  a  sin  of  commission,  but  for  one  of  omission.  It 
may  well  be  doubted  whether  this  alone  would  not  justify  our  deciding 
it  on  principles  different  from  those  which  have  heretofore  governed, 
in  the  cases  referred  to.  But  without  pursuing  this  inquiry,  our  opin- 
ion is  that  an  officer,  acting  under  a  commission  from  government, 
who  is  enjoined  by  law  to  the  performance  of  certain  things,  if  in  his 
judgment  or  opinion  the  requisites  therein  mentioned  have  been  com- 
plied with,  and  inhibited,  under  the  like  exercise  of  his  own  discre- 
tion, from  doing  other  things,  who  is  sworn  to  discharge  these  duties 
to  the  best  of  his  ability,  and  exposed  also  to  penalties,  as  well  for  neg- 
ligence as  for  acting  where  he  ought  not,  is  not  answerable  to  a  party, 
who  may  conceive  himself  aggrieved  for  an  omission  arising  from  mis- 
take or  mere  want  of  skill,  if  there  be  no  bad  faith,  corruption,  malice, 
or  some  misbehavior,  or  abuse  of  power.  Nothing  of  the  kind  ap- 
pearing here,  the  judgment  must  be  reversed. 

Judgment  of  reversal.^* 


LINCOLN  V.  HAPGOOD. 

(Supreme  Judicial  Court  of  Massacliusetts,  1814.    11  Mass.  3.'0.) 

Case  against  the  defendants,  for  that,  when  acting  and  presiding  as 
selectmen  of  the  town  of  Petersham,  at  a  meeting  then  duly  convened 
and  holden  for  the  election  of  a  representative  in  ]\Iay,  1812,  they  re- 
fused the  plaintiff's  vote  there  offered,  although  a  qualified  voter,  enti- 
tled to  vote  in  the  said  election,  etc.  ''=  *  =•'  The  refusal  of  the  plain- 
tiff's vote  was  admitted  on  the  part  of  the  defendants,  and  the  cause 
was  left  to  the  jury,  with  a  direction  from  the  judge  to  find  a  verdict 
for  the  plaintiff,  if  his  home  and  residence  had  been  proved  to  be  at 
Petersham,  notwithstanding  his  occasional   absences  at   Belchertown, 

14  As  to  insi>ectors,  see  note,  95  Am.  St.  Rep.  132  (lS9u) ;  Niclierson  v. 
Tliompson,  a3  Me.  433  (1851)  ;   Gordon  v.  Livingston,  12  Mo.  App.  267  (1882). 

As  to  malice,  see  Gregory  v.  Brooks,  37  Conn.  3G5  (1870) ;  Spalding  v.  Vilas, 
161  U.  S.  483,  16  Sup.  Ct.  631,  40  L.  Ed.  780  (1896). 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  291 

and  his  being  permitted  to  vote  there,  and  actually  voting  there  at  the 
April  meetings.  And  the  judge  consented  to  reserve  the  question  of 
the  plaintiff's  qualification. 

The  judge  also  ruled  that  evidence  of  malicious  and  injurious  inten- 
tions was  not  necessary  in  this  case,  to  entitle  the  plaintiff'  to  recover 
damages  for  the  privation  of  his  franchise  by  the  act  of  the  selectmen, 
if  their  conduct  had  not  proceeded  from  an  unavoidable  mistake  of  any 
fact,  uncertain  in  the  nature  of  the  proof  upon  which  it  depended,  but 
from  a  mistake  of  the  law,  they  having  undertaken  to  decide  upon  the 
rights  of  ihe  plaintltf ;  and  upon  this  point  also  the  case  was  reserved 
by  the  judge.  The  jury  returned  a  verdict  for  the  plaintiff,  which  was 
taken,  subject  to  the  opinion  of  the  court  upon  the  questions  so  re- 
served. 

Parker,  C.  J.^'  As  to  the  first  point  reserved  for  the  consideration 
of  the  court,  we  are  of  opinion  that  the  plaintiff  had  a  legal  right  to 
vote  in  the  choice  of  representatives  in  Petersham.     *     '^     -^ 

But  a  more  difficult  question  remains,  and  that  is  whether  the  de- 
fendants in  this  case,  who  are  public  officers  without  reward,  and  upon 
whom  the  difficult  task  is  imposed  by  law  of  deciding  suddenly  upon 
the  qualifications  of  voters,  are  liable  in  damages  for  an  error  of  judg- 
ment only,  when  they  have  been  guilty  of  no  malice,  and  have  exercised 
an  honest  and  fair  judgment  upon  the  question  before  them?  The 
case  does  not  impute  any  corrupt  motive,  or  even  any  negligence  in 
performance  of  duty,  to  the  defendants.  The  presumption  therefore 
must  be  that  they  erred  through  ignorance. 

This  is  not  a  new  question  with  us,  although  it  has  never  been  formal- 
ly decided  by  the  whole  court.  In  the  case  of  Gardner  v.  Ward  et  al., 
\2  Mass.  244,  which  is  the  first  action  of  the  kind  in  this  state  of  which 
we  have  a  report,  no  question  appears  to  have  been  made  by  the  counsel 
or  the  court  as  to  the  liability  of  the  selectmen  if  they  erroneously  de- 
cided against  the  plaintiff's  rights,  although  his  vote  was  rejected  in 
that  case  upon  the  ground  of  his  alienage ;  a  point  which  honest  and 
well-informed  men,  not  lawyers,  might  determine  wrongly  with  the  best 
possible  motives. 

In  a  like  case,  which  occurred  the  succeeding  year  in  the  same  county 
(Kilham  v.  Ward,  2  Mass.  236),  we  find  this  objection  to  the  action  in 
the  argument  of  the  counsel ;  but  no  reply  to  it  from  the  other  side, 
and  no  notice  taken  of  it  by  the  court,  from  which  we  may  infer  that  it 
was  not  much  relied  on  as  an  important  point  in  the  cause. 

Since  that  time,  however,  actions  of  this  kind  having  multiplied  in 
all  parts  of  the  commonwealth,  in  consequence  of  an  increased  interest 
in  the  elections,  it  has  become  a  matter  of  serious  consideration  wheth- 
r  the  selectmen  of  towns,  acting  fairly  in  discharge  of  a  duty  imposed 
apon  them  by  law,  shall  be  exposed  to  actions  for  a  mere  mistake  of 
|:he  law,  or  misapprehension  of  facts ;  whether  in  truth  they  are  not  to 
■36  viewed!  as  judges,  and  so  entitled  to  the  common  privilege  of  the 
j 
I   15  Only  a  portion  of  this  case  is  printed. 


292  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    3 

judicial  character,  not  to  be  punished,  or  to  be  responsible  in  damages, 
for  any  consequence  of  a  judgment  merely  erroneous. 

I  confess  I  have  for  some  time  maintained  the  affirmative  upon  this 
question,  and  have,  in  one  or  two  instances  at  nisi  prius,  given  this 
opinion,  reserving  a  right  to  the  plaintiffs  to  have  the  question  decided 
by  the  whole  court.  But  long  reflection  upon  the  subject,  and  the  rea- 
soning of  those  of  my  Brethren  who  have  inclined  to  the  opposite  opin- 
ion, have  finally  satisfied  me  that  I  was  mistaken,  and  that,  however 
hard  such  an  action  may  be  against  selectmen,  it  is  essential  to  the 
rights  of  the  citizen  that  it  should  be  sustained. 

The  right  of  voting,  in  such  a  government  as  ours,  is  a  valuable  right ; 
it  is  secured  by  the  Constitution ;  it  cannot  be  infringed!  without  pro- 
ducing an  injury  to  the  party;  and  although  the  injury  is  not  of  a  na- 
ture to  be  effectually  repaired  by  a  pecuniary  compensation,  yet  there 
is  no  other  indemnity,  which  can  be  had.  In  such  a  case,  as  in  the  case 
of  an  injury  to  the  reputation,  and  sometimes  to  the  feelings,  the  good 
of  society,  and  security  against  a  repetition  of  the  wrong,  require  that 
the  suffering  party  should  be  permitted  to  resort  to  this  mode  of  relief. 

The  selectmen  of  a  town  cannot  be  proceeded  against  criminally  for 
depriving  a  citizen  of  his  vote,  unless  their  conduct  is  the  eft'ect  of  cor- 
ruption, or  some  wicked  and  base  motive.  If,  then,  a  civil  action  does 
not  lie  against  them,  the  party  is  deprived  of  his  franchise  without  any 
relief,  and  has  no  way  of  establishing  his  right  to  any  future  suft'rage. 
Thus  a  man  may  be  prevented,  for  his  life,  from  exercising  a  consti- 
tutional privilege,  by  the  incapacity  or  inattention  of  those  who  are 
appointed  to  regulate  elections. 

The  decision  of  the  selectmen  is  necessarily  final  and  conclusive  as  to  ■ 
the  existing  election.  No  means  are  known  by  which  the  rejected  vote 
may  be  counted  by  any  other  tribunal,  so  as  to  have  its  influence  upon 
the  election,  or  at  least  no  practice  of  that  kind  has  ever  been  adopted 
in  this  state.  There  is,  therefore,  not  only  an  injury  to  the  individual, 
but  to  the  whole  community ;  the  theory  of  our  government  requiring 
that  each  elective  officer  shall  be  appointed  by  the  majority  of  the 
votes  of  all  the  qualified  citizens  who  choose  to  exercise  their  privi- : 
lege. 

Now,  if  a  party  diuly  qualified  is  unjustly  prevented  from  voting,  and 
yet  can  maintain  no  action  for  so  important  an  injury,  unless  he  is  able 
to  prove  an  ill  design  in  those  who  obstruct  him,  he  is  entirely  shut 
out  from  a  judicial  investigation  of  his  right;  and  succeeding  injuries 
may  be  founded  on  one  originally  committed  by  mistake.  He  may  thus 
be  perpetually  excluded  from  the  common  privilege  of  citizens,  without 
any  lawful  means  of  asserting  his  rights,  and  restoring  himself  to  the 
rank  of  an  active  citizen.  Such  a  doctrine  would  be  inconsistent  with 
the  principles  and  provisions  of  our  free  Constitution,  and  must  give 
way  to  the  necessity  of  maintaining  the  people  in  their  rights,  secured 
to  them  by  the  form  of  their  government. 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  293 

This  principle  has  not  been  perhaps  precisely  settled!  in  England, 
although  I  apprehend,  in  the  case  of  Ashby  v.  White,  2  Ld.  Raym. 
938,  the  principle  upon  which  this  action  is  to  be  maintained  was  fully 
recognized  by  Lord  Holt,  and  afterwards  by  the  House  of  Lords,  who 
reversed  the  judgment  given  by  the  three  other  judges  of  the  King's 
Bench,  against  the  opinion  of  that  eminent  judge.  The  argument, 
upon  which  that  case  turned,  was  that  an  actual  injury  had  been  done, 
and  that  it  was  inconsistent  with  the  character  of  the  English  laws  that 
there  should  be  no  remedy  for  a  subsisting  injury.  No  question  seems 
to  have  been  made  in  that  cause  of  malice  in  the  returning  officer ; 
probably  none  was  suggested.  But  the  officer  was  finally  holden  to 
be  answerable  in  an  action  on  the  case,  on  the  mere  ground  that  he  had 
1  refused  to  receive  the  vote  of  a  subject,  wHo  was  entitled  to  vote. 
This  is  exactly  the  present  case,  although  perhaps  we  are  not  authorized 
to  say  that  malice  or  fraud,  or  corruption,  was  not  proved  in  the  case. 
But  it  does  not  appear  that  any  such  motive  was  considered  by  the 
judge  as  influencing  the  determination. 

In  a  later  case,  however,  of  Drewe  v.  Coulton,  cited  in  a  note  to  the 
case  of  Harman  v.  Tappenden  et  al.,  1  East,  563,  Mr.  Justice  Wilson 
nonsuited  a  plaintiff  in  such  an  action,  because  it  did  not  appear  that 
i  the  defendants  acted  maliciously.  The  nonsuit  being  acquiesced  in  by 
I  eminent  counsel,  it  is  fair  to  suppose  that  an  action  of  [on]  the  case 
I  cannot  now  be  maintained  in  England  for  rejecting  a  vote,  unless  the 
I  injury  is  proved  to  have  been  done  maliciously. 

j       But  in  England  another  remedy  exists,  which  does  not  exist  with  us. 
1  The  electors  there  all  vote  viva  voce.    Their  names  are  taken  down  by 
t  the  returning  officer,  as  well  those  whose  votes  are  received  as  those 
I  who  are  not  permitted  to  vote,  and  also  the  name  of  the  candidate  for 
f  whom  they  would  vote,  of  which  a  return  is  made  to  the  House  of  Com- 
)!  mons.    There  a  revision  by  a  committee  takes  place;   and  the  rejected 
j  vote  is  counted,  and  has  its  effect  upon  the  election,  if  it  was  unlawful- 
ly rejected.     But  with  us  there  is  no  such  remedy ;    and  without  an 
action  there  is  no  remedy  at  all,  either  for  the  immediate  or  any  subse- 
quent election. 

But  notwithstanding  we  deem  it  necessary  that  this  action  should  be 
supported,  as  the  only  mode  of  ascertaining  and  enforcing  a  right  which 
has  been  disputed,  we  do  not  think  it  ought  to  be  a  source  of  specula- 
tion to  those  who  may  be  ready  to  take  advantage  of  any  injury,  and 
turn  it  to  their  profit,  to  the  vexation  and  distress  of  men,  who  have  un- 
fortunately been  obliged  to  decide  on  a  question  sometimes  intricate  and 
complicated,  but  who  have  discovered  no  disposition  to  abuse  their  pow- 
er for  private  purposes.  And  we  therefore  think  that  juries  should 
always,  in  estimating  the  damages,  have  regard  to  the  disposition  and 
temper  of  mind  discoverable  in  the  act  complained  of ;  and  probably 
the  court  would  determine  that  a  sum,  comparatively  not  large,  would 
be  excessive  damages  in  a  case  where  no  fault,  but  ignorance  or  mistake, 
was  imputable  to  the  selectmen. 


294  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Fait    3 

On  the  other  hand,  in  cases  in  which  it  should  he  apparent  that  there 
was  a  willful  deviation  from  duty,  and  a  wanton  rejection  of  a  vote, 
from  party  motives,  or  from  personal  hostility  to  the  citizen  whose 
vote  is  refused,  or  even  a  negligent  or  inattentive  examination  of  his 
claim,  exemplary  damages  would  he  required,  as  a  compensation  to  the 
injured  party,  and  an  expiation  of  the  high  and  aggravated  offense 
against  the  civil  and  political  privileges  of  the  citizen. 

Upon  the  whole,  we  see  no  better  way  than  to  leave  cases  of  this 
kind  to  the  jury,  under  the  direction  of  the  court;  nor  have  we  any 
doubt  that  a  correct  public  sentiment  will  apply  the  remedy  in  each  case, 
proportionately  to  the  offense,  so  that,  on  one  hand,  a  man  who  has 
been,  without  any  fault  of  his  own,  deprived  of  a  valuable  privilege 
should  find  indemnity  and  protection  in  the  laws,  and,  on  the  other,  that 
men  who  are  in  places  of  public  trust  should  not  be  subject  to  too 
severe  a  penalty  for  an  involuntary  failure  in  a  proper  performance  of 
their  duty. 

Judgment  on  the  verdict.^® 


JEXKIXS  V.  A\'ALDRON. 
(Supreme  Court  of  New  York.  ISU.     11  Jolius.  114.  6  Am.  Dec.  o."0.) 

In  error,  on  certiorari,  from  a  justice's  court.  Waldron  brought  an 
action  on  the  case  against  Seth  Jenkins,  Erastus  Pratt,  Daniel  Clark 
and  William  Coventry,  the  plaintiff's  in  error,  as  inspectors  of  the  elec- 
tion held  in  Hudson,  in  Columbia  county,  in  April,  1811,  for  refusing 
to  receive  his  vote,  as  an  elector,  etc. 

The  plaintiff"  below  stated,  in  his  declaration,  that  the  defendants 
below  were  inspectors  of  the  poll  in  the  city  of  Hudson,  at  the  general 
election  in  ISll ;  that  the  plaintiff  was  duly  qualified  to  vote  for  mem- 
bers of  the  assembly;  that  he  tendered  his  vote  to  the  defendants; 
and  that  they  wickedly  and  designedly  refused  his  vote,  and  would  not 
permit  him  to  exercise  his  right  of  suff'rage,  to  his  damage,  etc.  The 
defendants  pleaded  the  general  issue. 

The  following  facts  appeared  in  the  justice's  return,  as  proved  and 
admitted  on  the  trial  before  him.  The  defendants  below  were  duly 
elected  and  sworn  as  inspectors  at  the  general  election  in  1811,  and  act- 
ed as  such  when  the  plaintiff'  below  oft'ered  his  vote  at  the  poll  for 
members  of  assembly.  The  plaintiff'  is  a  black  or  colored  man,  and  at 
the  time  he  offered  his  vote  he  tendered  a  certified  copy  of  a  certificate 
of  his  being  a  free  man,  under  the  hand  and  seal  of  Samuel  Edmonds, 
one  of  the  judges  of  the  Court  of  Common  Pleas  of  the  county  of 

J  6  8ee  Kinneen  v.  Wells.  144  Mass.  407,  11  X.  E.  916.  50  Am.  Rep.  105  (1SS7). 

Accord:  Jeffries  v.  Aukeny.  11  Ohio.  372  (1S42)  :  "When  we  reflect  how 
highly  the  privilege  of  votiug  is  generally  valued,  and  that  the  Legislature 
has  providetl  and  the  forms  of  law  admit  no  other  remedy  than  this  action, 
we  unite  in  the  opinion  that  a  necessity  exists  for  entertaining  this  remedy'." 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONET.  295 

Columbia,  dated  9th  April,  1811,  which  certificate  was  recorded  in 
the  office  of  the  clerk  of  the  town  of  Livingston,  and  the  copy  was 
certified  by  the  clerk  of  that  town.  The  plaintitT  offered,  at  the  same 
time,  to  make  any  other  proof  of  his  qualification  to  vote  that  the  in- 
spectors might  require,  and  to  take  the  oaths  required  by  law.  The  de- 
fendants below  rejected  the  plaintiff's  vote,  solely  on  the  ground  that 
Samuel  Edmonds,  at  the  time  of  giving  the  certificate  of  freedom,  was 
not  a  judge  according  to  law,  and,  therefore,  not  authorized  to  give  the 
certificate.  The  inspectors  declared  they  did  not  require  any  other 
proof  of  the  plaintiff's  qualification  to  vote,  except  a  dittercnt  certifi- 
cate, or  such  a  one  as  they  should  deem  legal  and  valid." 

Spencer^  J.,  delivered  the  opinion  of  the  court. 

It  is  not  necessary  to  the  decision  of  this  cause  to  pronounce  any 
opinion  on  the  question  whether  Judge  Edmonds  was  a  judge  de  jure  or 
de  facto  when  he  gave  the  certificate  that  the  defendant  had  duly  proved 
himself  to  be  a  free  man;  for,  admitting  that  Judge  Edmonds  was  ei- 
ther, this  action,  as  laid,  is  not  maintainable.  It  is  not  alleged  or  proved 
that  the  inspectors  fraudulently  or  maliciously  refused  to  receive  Wald- 
ron's  vote ;  and  this  we  consider  to  be  absolutely  necessary  to  the  main- 
tenance of  an  action  against  the  inspectors  of  an  election. 

The  case  principally  relied  on  by  the  counsel  for  the  defendant  in 
error  is  that  of  Ashby  v.  White,  2  Ld.  Raym.  938.  There  the  declara- 
tion alleged  that  the  rejection  of  Ashby's  vote  was  done  fraudulently 
and  maliciously,  and,  although  the  jury  found  the  defendant  guilty, 
the  judgment  was  arrested  by  three  judges,  in  opposition  to  the  opinion 
of  Chief  Justice  Holt.  This  judgment  was  afterwards  reversed  in  the 
House  of  Lords.  The  reasons  for  the  reversal  do  not  appear  in  the 
report  of  the  case ;  but  the  ground  of  the  reversal  is  distinctly  stated 
in  the  resolutions  of  the  Lords,  in  answer  to  the  resolutions  of  the  Com- 
mons, reprehending  the  bringing  the  action  and  the  judgment  thereon. 
The  first  resolution  of  the  Lords  states  ''that  by  the  known  laws  of  this 
kingdom,  every  freeholder,  or  other  person  having  a  right  to  give  his 
vote  at  the  election  of  members  to  serve  in  Parliament,  and  being  will- 
fully denied,  or  hindered  so  to  do,  by  the  officers  who  ought  to  receive 
the  same,  may  maintain  an  action  in  the  Queen's  courts  against  such 
officer,  to  assert  his  right,  and  to  recover  damages  for  the  injury."  1 
Bro.  Pari.  Cas.  (1st  Ed.)  49. 

The  case  of  Harman  v.  Tappenden  and  Others,  1  East,  555,  and 
Drewy  v.  Coulton,  in  a  note  to  that  case,  clearly  show  that  this  action 
is  not  maintainable,  without  stating  and  proving  malice,  express  or  im- 
plied, on  the  part  of  the  officers.  In  the  case  in  the  text,  Lawrence,  J., 
said,  "There  is  no  instance  of  an  action  of  that  sort  maintained  for  an 
act  arising  merely  from  error  of  judgment;"  and  he  cited  ]\Ir.  Justice 
Wilson's  opinion  in  Drewy  v.  Coulton  with  approbation.  In  that  case 
the  suit  was  for  refusing  the  plaintiff's  vote.    Justice  Wilson  considered 

17  The  statement  of  facts  is  abridged. 


296  RELIEF  AGAINST   ADMINISTRATIVE   ACTION.  (Part    3 

it  as  an  action  for  misbehavior  by  a  public  officer  in  the  discharge  of  his 
duty,  and  that  the  act  must  be  maHcious  and!  willful  to  render  it  a  mis- 
behavior ;  and  he  held  that  no  action  would  lie  for  a  mistake  in  law. 
In  speaking  of  the  case  of  Ashby  v.  White,  he  considered  it  as  having 
been  determined  by  the  House  of  Lords  on  that  ground,  from  the  reso- 
lutions entered  into  by  them.  The  whole  of  Judge  Wilson's  reason- 
ing is  clear,  perspicuous  and  irresistible ;  and  is  fully  confirmed  in  Har- 
man  v.  Tappenden.  It  would,  in  our  opinion,  be  opposed  to  all  the 
principles  of  law,  justice  and  sound  policy  to  hold  that  officers,  called 
upon  to  exercise  their  deliberative  judgments,  are  answerable  for  a  mis- 
take in  law,  either  civilly  or  criminally,  when  their  motives  are  pure, 
and  untainted  with  fraud  or  malice. 
Judgment  reversed.^ ^ 


WHEELER  V.  PATTERSON. 

(Superior  Court  of  Judicature  of  New  Hampsliire,  1817.     1  N.  IT.  88,  8  Am. 
Dec.  41.) 

Case  against  the  defendant  for  illegally  and  maliciously  rejecting 
the  plaintiff's  vote  for  Governor  of  this  state,  at  a  town  meeting  in 
Temple,  March  12,  1816,  the  defendant  being  moderator  of  the  meet- 
ing, and  the  plaintiff  legally  entitled  to  vote. 

The  cause  was  tried  in  this  county  at  the  last  April  term  upon  the 
general  issue,  when  it  was  satisfactorily  proved  that  the  plaintiff  was 
legally  entitled  to  vote  for  Governor,  and  that  his  vote  had  been  re- 
fused by  the  defendant,  who  was  moderator  of  the  meeting,  as  al- 
leged in  the  declaration ;  but  the  court  directed  the  jury  that  they 
ought  not  to  find  a  verdict  for  the  plaintiff,  unless  they  believed  that 
the  defendant  had  refused  the  vote  maliciously,  and  from  improper 
motives,  and  under  this  direction  the  jury  returned  a  verdict  for  the 
defendant. 

The  plaintiff  moved  the  court  to  grant  a  new  trial  on  the  ground 
of  a  misdirection  in  thus  instructing  the  jury,  and  the  cause  was  con- 
tinued to  this  term  for  advisement. 

Richardson,  C.  J.^^  It  seems  that  an  action  of  this  description 
cannot  be  maintained  in  England,  without  alleging  and  proving  nialice. 
'Ashby  V.  White,  2  L.  Raymond,  938;  6  I\Iod.  45;  1  East,  555,  563, 
note;  1  Bro.  Par.  Cas.  49.  The  law  is  settled  to  be  the  same  in  New 
York.     Jenkins  et  al.  v.  Waldron,  11  Johns.   114,  6  Am.   Dec.  359. 

isAccord:  Carter  v.  Harrison,  5  Blackf.  (Ind.)  138  (18.39);  Rail  v.  Potts, 
8  Humpli.  (Tenn.)  225  (1847);  Gordon  v.  Farrar,  2  Doug.  (Micli.)  411  (1847): 
Peavey  v.  Robinson,  48  N.  C.  339  (1856);  Perry  v.  Reynolds,  53  Conn.  527,  3 
Atl.  5.55  (1885). 

With  reference  to  the  case  of  Ashby  v.  White,  2  Ld.  Raym.  938  (1703),  see 
Campbell's  Ores  of  the  Chief  Justices,  III,  41-45. 

See  statute  of  Illinois  (Act  Feb.  12,  1S49,  p.  75,  §  20),  allowing  action  on  the 
case  for  refusal  of  vote,  damages  not  to  exceed  $500,  since  repealed. 

19  Only  a  portion  of  the  opinion  by  Richardson,  C.  J.,  is  printed. 


Ch.  7)  ACTIONS  TO   RECOVER  DAMAGES  OR  MONEY.  297 

But  in  Massachusetts  it  has  been  solemnly  decided  to  be  otherwise, 
and  their  courts  hold  that  those  who  reject  the  vote  of  a  qualified 
elector  are  liable,  although  not  chargeable  with  malice.  Lincoln  v. 
Hapgood,  11  Mass.  350.     *     *     * 

But,  notwithstanding  we  entertain  the  most  entire  respect  for  the 
decisions  of  that  court,  we  have  not  been  able,  after  the  most  mature 
reflection,  to  adopt  their  opinion  upon  this  subject.     *     *     '■^' 

It  is  true  that  moderators  may  decide  wrongly  with  the  best  inten- 
tions, and  then  the  party  will  be  without  remedy.  And  so  may  a 
court  and  jury  decide  wrongly,  and  then  the  party  will  also  be  with- 
out remedy.  Perfect  justice  in  all  cases  never  was  and  never  will 
be  administered  in  any  human  tribunal,  and  yet  human  tribunals  must 
be  intrusted  with  the  ultimate  decision  upon  our  most  important 
rights.  So  long  as  moderators  act  honestly  and  conscientiously,  no 
great  injustice  will  be  done,  even  if  they  be  intrusted  to  decide  finally 
upon  the  rights  of  electors.  If  those  rights,  however,  shall  be  found 
not  to  be  sufficiently  secure  in  the  hands  of  moderators,  the  Legis- 
lature can  provide  further  remedy;  but  to  use  the  language  of  the 
Supreme  Court  of  New  York,  on  this  subject,  "it  would  in  oiir  opin- 
ion be  opposed  to  all  the  principles  of  law,  justice,  and  sound  policy 
to  hold  that  officers,  called  upon  to  exercise  their  deliberative  judg- 
ments, are  answerable  for  mistakes  in  law  either  civilly  or  criminally, 
when  their  motives  are  pure  and  untainted  with  fraud  or  malice." 
11  Johns.  121. 

Judgment  on  the  verdict. 


EASTON  V.  CALENDAR. 

(Supreme  Court  of  New  York,  miS.     11  Wend.  90.) 

Error  from  the  Onondaga  common  pleas. 

Calendar  sued  Easton  and  two  others,  trustees  of  a  school  district, 
in  trespass,  they  having  issued  a  warrant  by  virtue  of  which  was 
sold  a  cow  belonging  to  him.  The  defendants  justified  under  a  vote 
of  a  district  meeting  to  raise  by  tax  the  sum  of  $168.75  to  repair  the 
district  schoolhouse.  The  trustees  made  out  a  tax  list,  purporting 
to  contain  the  names  of  the  taxable  inhabitants  of  the  district,  set- 
ting opposite  the  name  of  each  inhabitant  the  amount  of  his  assess- 
ment, and  of  tax  to  be  paid  by  him.  Calendar's  name  was  on  the 
list,  the  amount  of  tax  to  be  paid  by  him  was  set  down  at  $11.59,  and 
the  whole  amount  of  tax  to  be  paid  in  the  district,  according  to  the 
list,  was  $177.65.  The  warrant  issued  by  the  trustees  directed  the 
collector  to  "collect  from  each  of  the  inhabitants  in  the  annexed  tax 
list  named  the  sum  of  money  set  opposite  to  his  or  her  name  in  said 
list,  and  within  thirty  days  after  receiving  this  warrant  to  pay  the 
amount  thereof,  collected  by  you    (retaining  five  per  cent,   for  your 


298  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

fees),  into  the  hands  of  the  trustees,  etc.  It  was  proved  on  the  part 
of  the  plaintiff  that  the  names  of  three  individuals  who  lived  in  the 
district  were  not  on  the  tax  list,  and  those  individuals  owned  farms 
situate  in  the  district.  On  the  part  of  the  trustees,  it  was  proved 
that  there  were  other  individuals,  besides  those  named  on  the  tax  list, 
who  resided  in  the  district  and  whose  names  were  not  on  the  list; 
but  the  witnesses  could  not  say  whether  they  were  or  were  not  tax- 
able. 

The  suit  was  commenced  before  a  justice  by  summons,  which  was 
served  personally  on  two  of  the  defendants,  viz.,  S.  Favor  and  J.  Eas- 
ton,  and  by  copy  on  Everson,  the  third  defendant.  On  the  return  of 
the  summons,  Everson  did  not  appear.  The  other  two  defendants 
did  appear,  and  joined  issue  with  the  plaintiff,  which  issue  was  sub- 
sequently tried  before  the  justice,  and  judgment  rendered  in  favor 
of  the  defendants  'for  costs.  The  plaintiff"  sued  out  a  certiorari  to 
the  Onondaga  common  pleas,  which  court  reversed  the  judgment  of 
the  justice,  and  rendered  judgment  for  the  costs  of  prosecuting  the 
certiorari  in  favor  of  Calendar  against  Favor,  Easton  and  Everson. 
Whereupon  the  defendant  sued  out  a  writ  of  error. 

Nelson,  J.  The  inhabitants  of  a  school  district  are  empowered  to 
lay  a  tax  on  themselves  for  specified  purposes  (1  Rev.  St.  p.  478,  § 
61),  and  the  trustees  of  such  district  are  required  to  make  out  a  tax 
list  whenever  a  district  tax  is  voted,  containing  the  names  of  all  the 
taxable  inhabitants  residing  in  the  district  at  the  time  O'f  making  out 
the  list,  and  the  amount  of  tax  payable  by  each  inhabitant,  set  op- 
posite to  his  name,  and  to  annex  to  such  tax  Hst  a  warrant  directed 
to  the  collector  of  the  district  for  the  collection  of  the  sums  in  such 
list  mentioned,  with  five  cents  on  each  dollar  thereof  for  his  fees  (Id. 
p.  481,  §  75).  The  collector  is  allowed  five  cents  on  every  dollar 
collected  and  paid  over  by  him  (Id.  p.  480,  §  104).  On  failure  to 
collect  the  tax  upon  the  warrant,  the  trustees  in  certain  specified 
cases  may  sue  and  recover  it  in  their  official  names.  The  better  opin- 
ion, I  think,  is  that  the  collector  is  not  entitled  to  the  five  per  cent, 
upon  his  fees,  and  that  the  apportionment  made  by  the  trustees  in 
this  case  was  erroneous  in  this  respect.  The  trustees  are  to  make 
out  the  tax  list  of  every  district  tax  voted,  and  the  amount  of  such 
tax  payable  by  each  inhabitant  is  to  be  set  opposite  his  name.  The 
warrant  is  to  direct  the  collector  to  collect  the  sums  in  such  list,  with 
(that  is,  in  addition)  five  cents  on  each  dollar  thereof  for  his  'fees. 
This  percentage  he  is  entitled  to  only  on  condition  of  collecting  and 
paying  it  over;  if  he  does  not  collect  the  tax,  in  certain  cases  the  trus- 
tees may  sue  for  and  recover  it ;  but  surely  they  are  not  entitled  to  the 
collector's  fees,  which  would  or  might  be  recovered,  if  the  percentage 
is  included  in  the  apportionment. 

But  conceding  this  to  be  error  on  the  part  of  the  trustees,  and 
also  that  they  erred  in  omitting  to  insert  the  names  of  all  the  taxable 
inhabitants,  does  it  follow  that  they  are  trespassers  ?     Their  duties  are 


Ch.  7)  ACTIONS   TO   RECOVER  DAMAGES   OR  MONEY.  299 

various.  Some  partake  of  a  judicial  and  some  of  a  ministerial  char- 
acter, while  in  others  they  may  be  considered  as  actors  or  parties. 
Baker  v.  Freeman,  9  Wend.  42,  2-1  Am.  Dec.  117.  Their  acts  and 
proceedings  should  therefore  be  tried  and  tested  by  principles  well 
settled,  which  define  with  precision  and  justice  their  duties  and  re- 
sponsibilities. The  range  of  their  official  acts  imposed  upon  them  by 
law  embracing  these  dififerent  functions,  it  is  the  duty  of  the  court 
to  separate  them,  and  apply  to  each,  as  it  comes  up  for  consideration, 
its  appropriate  principle.  The  business  of  these  officers  is  often 
perplexed  and  embarrassing,  and  their  conduct,  when  acting  in  good 
faith  and  within  the  scope  of  their  powers,  should  be  viewed  with 
indulgence  by  the  court,  and  deserves  the  most  liberal  intendment 
of  the  law.  The  apportionment  of  the  tax  voted  among  the  taxable 
inhabitants  is,  in  my  opinion,  to  a  certain  extent,  in  the  nature  of  a 
judicial  act.  The  trustees  are  to  determine  who  are  and  who  are 
not  taxable  within  the  provisions  of  the  statute;  they  are  then  to  ap- 
portion to  each  his  share  according  to  the  value  of  his  real  and  per- 
sonal estate  and  in  some  cases  they  are  obliged  to  fix  such  value. 

Sections  76,  77,  78,  page  482,  show  that  the  duty  of  ascertaining 
the  taxable  inhabitants  is  involved  in  considerable  difficulty,  and  that 
an  error  in  this  respect  may  arise  as  well  from  a  mis  judgment  of  the 
law  on  the  part  of  these  officers  as  a  mistake  in  fact.  They  are  bound 
to  act,  and  to  exercise  their  best  judgment  in  the  apportionment  of  the 
tax;  and  if  they  confine  themselves  within  the  limits  of  the  statute, 
though  they  may  err  in  point  of  law  or  in  judgment,  they  should 
not  be  either  civilly  or  criminally  answerable,  if  their  motives  are 
pure.  This  is  the  rule  applicable  to  public  officers,  bound  to  exer- 
cise their  deliberative  judgments  in  the  discharge  of  their  official 
duties,  and  is  applicable  to  all  inferior  magistrates,  and  others  called 
to  the  performance  of  functions  in  their  nature  and  character  judicial, 
while  acting  within  their  jurisdiction  and  the  scope  of  their  powers. 
The  liabilities  and  immunities  of  these  officers  were  examined  by 
the  Chief  Justice  in  Cunningham  v.  Bucklin,  and  the  principles  upon 
which  they  are  held  personally  liable  for  official  errors  correctly 
stated.     8  Cow.  184,  18  Am.  Dec.  432,  and  cases  there  cited. 

The  plaintifif  below  was  not  without  his  remedy  (1  Rev.  St.  487,  §§ 
110,  111)  ;  and  the  amendment  of  the  law,  20th  April,  1830,  provides 
that  any  person  conceiving  himself  aggrieved  in  consequence  of  any 
decision  made  by  the  trustees  of  any  district  in  paying  any  teacher, 
or  concerning  any  other  matter  under  the  present  title  (which  includes 
the  whole  of  the  school  act),  may  appeal  to  the  superintendent  of 
common  schools,  whose  decision  shall  be  final.  This  provision  was 
intended  for  what  it  practically  is,  a  cheap  and  expeditious  mode  of 
settling  most,  if  not  all,  of  the  difficulties  and  disputes  arising  in 
the  course  of  the  execution  of  the  law.  A  common-law  certiorari 
would  no  doubt  lie  from  this  court  to  the  trustees,  to  bring  up  and 
correct  any  erroneous  proceeding  not  concluded  by  an  adjudication 


300  RELIEF  AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

of  the  superintendent,  or  in  a  case  where  his  powers  were  inadequate  to 
give  the  reHef  to  which  the  party  was  entitled. 

I  admit  the  soundness  of  all  the  principles  relied  on  in  the  argument 
of  the  defendant  in  error,  namely,  that  when  a  special  power  is 
granted  by  statute  affecting  the  property  of  individuals,  it  must  be 
strictly  pursued,  and  appear  to  be  pursued  on  the  face  of  the  pro- 
ceedings; that  when  a  statute  confers  a  new  power  upon  justices  of 
the  peace,  they  must  proceed  in  the  mode  prescribed  by  the  statute; 
that  inferior  jurisdictions,  not  proceeding  according  to  the  course 
of  the  common  law,  are  confined  strictly  to  the  authority  given  them, 
and  can  take  nothing  by  implication,  but  must  show  their  power  ex- 
pressly given  in  every  instance.  Gilbert  v.  Columbia  Turnpike  Co.,  3 
Johns.  Cas.  107;  Bigelow  v.  Stearns,  19  Johns.  42,  10  Am.  Dec.  189; 
Jones  V.  Reid,  1  Caines,  594.  These  are  wholesome  principles,  and 
should  never  be  overlooked  in  determining  the  duties  or  reviewing  the 
proceedings   of   subordinate  tribunals. 

But  what  is  the  remedy?  Does  every  departure  from  the  statute, 
or  error  in  the  course  of  the  proceedings  under  it,  necessarily  make 
the  officer  and  all  concerned  trespassers?  Clearly  not.  Where  the 
party  or  inferior  magistate,  or  any  one  acting  in  that  character,  ex- 
tends the  power  of  the  court  or  statute  to  a  case  to  which  it  cannot 
be  lawfully  extended,  they  become  trespassers,  and  are  amenable  to 
the  party  aggrieved  as  such.  Suydam  &  Wyckoff  v.  Keys,  13  Johns. 
444,  is  an  illustration  of  this  principle.  There  the  trustees  of  a  school 
district  apportioned  a  tax,  and  directed  the  collector  in  the  warrant  to 
collect  it  from  the  plaintiffs,  who  were  not  liable  to  be  taxed  in  the 
district,  and  it  was  correctly  held  that,  so  far  as  the  trustees  were 
concerned,  they  had  no  jurisdiction,  and  were  trespassers.  I  agree 
with  Judge  Marcy,  in  Savacool  v.  Boughton,  5  Wend.  177,  21  Am. 
Dec.  181,  that  the  decision  in  that  case,  subjecting  the  collector  as  a 
trespasser,  cannot  be  supported ;  but  there  can  be  no  doubt  the  trus- 
tees were  trespassers  upon  established  principles. 

Where  the  magistrate  or  officer  has  jurisdiction  of  the  subject- 
matter,  and  errs  only  in  the  exercise  of  it,  his  acts  are  not  void,  but 
voidable,  and  the  only  remedy  is  by  certiorari  or  writ  of  error.  The 
books  are  full  of  illustrations  of  this  principle.  Henderson  v.  Brown, 
1  Caines,  90,  2  Am.  Dec.  164,  is  one.  There  it  was  held  by  a  majority 
of  the  court  that  an  error  by  the  assessors,  under  the  act  of  Congress 
of  19th  July,  1798,  in  assessing  the  new  theater  in  the  city  of  New 
York  as  a  dwelling  house,  did  not  subject  the  collector  as  a  tres- 
passer for  entering  and  collecting  the  tax,  on  the  ground  that  the  as- 
sessors had  jurisdiction  of  the  subject-matter,  and  the  error  was 
one  of  judgment  in  the  lawful  exercise  of  it.  Thompson  and  Rad- 
cliff.  Justices,  dissented,  and  held  the  assessors  and  collector  liable, 
contending  the  former  had  exceeded  their  authority  in  making  the  as- 
sessment. The  doctrine  of  the  majority  of  the  court  has  been  since 
repeatedly  recognized   and  applied.     In   Butler  v.   Potter,   17   Johns. 


Cll.  7)  ACTIONS  TO   RECOVER  DAMAGES   OR  MONEY.  301 

J 45,  it  was  held,  where  a  justice  has  no  jurisdiction  whatever,  and  un- 
dertakes to  act,  his  acts  are  coram  non  judice  and  void;  but  if  he 
has  jurisdiction,  and  errs  in  the  exercise  of  it,  his  acts  are  voidable 
only.  Grififin  v.  Mitchell,  2  Cow.  548 ;  Colvin  v.  Luther,  9  Cow.  64. 
I  may  add,  the  case  of  Henderson  v.  Brown  is  an  authority  to  show 
that  the  proceedings  of  the  trustees  in  making  the  assessment  in  this 
case  are  quasi  judicial. 

Without  pursuing  the  examination  further,  I  am  satisfied  trespass 
will  not  lie  against  the  defendants  below,  and  the  judgment  of  the 
common  pleas  should  be  reversed.-'*     ^^     *     * 

Judgment  reversed.-^ 


DOWNER  V.  LENT. 

(Supreme  Coiu't  of  California.  I8.36.     G  Cal.  94,  Co  Am.  Dec.  489.) 

Appeal  from  the  superior  court  of  the  city  of  San  Francisco. 

The  complaint  sets  forth  that  the  plaintifif  was  duly  appointed  and 
qualified  as  a  pilot  for  the  port  of  San  Francisco  on  June  17,  1854; 
that  on  the  27th  of  July  following  the  defendants,  who  in  the  meantime 
had  been  appointed  and  qualified  as  the  board  of  pilot  commissioners, 
and  acting  as  such  board,  notified  plaintiff  to  surrender  his  license, 
and  on  the  8th  of  August  following  published  in  a  San  Francisco  news- 
paper the  following  notice : 

"Consignees'  Notice. — To  Shipmasters  and  Consignees :  Notice  is 
hereby  given  that  Capt.  Thomas  P.  Downer  is  no  longer  authorized 
to  act  as  pilot  for  this  port. 

"Per  order  of  the  Pilot  Commissioners. 

"August  8,  1854."  "James  M.  Wilson,  Secretary. 

All  of  which  the  complaint,  in  a  second  count,  alleges  was  done  by 
defendants  wrongfully  and  maliciously,  and  with  knowledge  of  plain- 
tiff''s  rights,  with  intention  to  injure  plaintiff'  and  to  deprive  him  of  the 
benefits  and  emoluments  of  his  franchise,  and  to  his  damage  and  in- 
jury in  the  sum  of  $2,500,  for  which  sum  he  prays  judgment. 

No  malice  is  averred  in  the  first  count.  The  defendants  demurred  on 
the  ground  that  the  complaint  did  not  state  facts  sufficient  to  constitute 
a  cause  of  action — specifying,  among  other  grounds  of  objection,  that 
the  defendants  were  not  liable  in  their  individual  capacity  for  the  ex- 
ercise of  their  discretion  as  a  board  of  pilot  commissioners,  and  that 
it  appeared  by  the  complaint  that  the  acts  complained  of  were  done  by 
defendants  as  such  board. 

20  The  rest  of  tlie  opinion  is  omitted. 

21  Compare  Mygatt  v.  Wasliburu,  1.5  N.  T.  31G  (1857),  and  Dorn  v.  Backer, 
Gl  N.  Y.  201  (1874),  cited  and  commented  on  in  jNIcLean  v.  Jeplison,  123  X.  Y. 
142,  25  N.  E.  409,  9  L.  R.  A.  493  (1890),  post,  p.  5.56;  also.  Rooke  v.  Withers, 
5  Coke  Rep.  99b  (1598) ;  Stetson  v.  Kempton,  13  Mass.  272,  7  Am.  Dec.  145 
(181G),  post,  p.  334. 


302  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

The  demurrer  was  overruled,  and  the  defendants  answered.  The 
cause  was  tried  he  fore  a  jury,  who  found  a  verdict  for  the  plaintiff 
for  $3,000.  Defendants  moved  for  a  new  trial,  which  was  denied,  and 
judgment  entered  upon  the  verdict.    Defendants  appealed. 

The  opinion  of  the  court  was  delivered  by  Mr.  Justice  Huydijnfeldt. 
Mr.  Chief  Justice  Murray  and  Mr.  Justice  Terry  concurred. 

It  is  beyond  controversy  that  the  power  of  the  board  of  pilot  com- 
missioners is  quasi  judicial,  and  they  are  not  civilly  answerable.  They 
are  public  officers  to  whom  the  law  has  intrusted  certain  duties,  the 
performance  of  which  requires  the  exercise  of  judgment.  They  are 
unlike  a  ministerial  officer,  whose  duties  are  well  defined,  and  who 
must  fail  to  execute  them  properly  at  his  own  peril. 

Whenever,  from  the  necessity  of  the  case,  the  law  is  obliged  to  trust 
to  the  sound  judgment  and  discretion  of  an  officer,  public  policy  de- 
mands that  he  should  be  protected  from  any  consequences  of  an  er- 
roneous judgment. 

The  court  erred  in  refusing  to  sustain  the  demurrer  to  the  declara- 
tion, and  the  judgment  is  reversed. 


GILLESPIE  v.  PALMER. 

(Supreme  Court  of  Wisconsin,  ISGG.     20  Wis.  544.) 

Downer,  J."  ''"  *  *  It  is  contended  by  the  respondents  that 
the  complaint  is  defective  because  it  does  not  aver  malice  on  their  part 
in  rejecting  the  vote.  Chapter  7,  Rev.  St.,  prescribes  the  duties  of  the 
respondents  as  inspectors,  and  they  are,  in  substance,  that  it  shall  be 
the  duty  of  each  inspector  to  challenge  every  person  offering  to  vote, 
whom  he  shall  know  or  suspect  not  to  be  duly  qualified  as  an  elector. 
One  of  the  inspectors  may  then  administer  to  the  person  offering  to 
vote  an  oath  that  he  will  truly  answer  such  questions  as  shall  be  put 
to  him  touching  his  residence  and  qualifications  as  an  elector.  If  the 
person  refuse  to  take  the  oath,  or  to  answer  any  of  the  questions  put  to 
him,  his  vote  is  to  be  rejected;  but  if  he  take  the  oath  and  answer  the 
questions,  however  false  may  be  his  answers,  and  however  clearly  they 
may  show  that  he  has  no  right  to  vote,  and  he  still  insists  upon  voting, 
it  is  their  duty  to  tender  to  him  the  oath  prescribed  in  section  36  of 
the  act,-^  and,  if  he  takes  it,  to  receive  his  vote.  If  he  swears 
falsely,  or  votes  without  the  requisite  qualifications,  he  may  be,  on 
conviction,  punished.     But  if   he  takes   the  oaths,   and   answers   the 

2  2  Only  a  portion  of  the  opinion  is  printed. 

2  3Tlie  oatli  is  to  the  effect  that  the  person  is  21  years  of  age,  that  he  is  a 
citizen  of  the  United  States,  or  has  declared  his  intention,  etc.,  that  he  has 
resided  in  the  state  one  year  next  preceding  the  election,  that  he  is  a  resident 
of  the  town  or  ward  as  the  case  may  be,  that  he  has  not  voted  at  the  election, 
and  has  not  made,  or  become  interested  in,  any  bet  or  wager  depending  upon 
the  result  of  the  election. 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  303 

questions  put,  there  is  no  discretion  with  the  inspectors.  They  are 
mere  ministerial  officers;  certainly  far  from  being  judicial.  The 
registry  act  provides  in  substance  that  any  one  may  have  his  name 
registered  as  a  voter  upon  taking  the  same  oaths  and  giving  the  same 
information  required  for  voting. 

If  the  inspectors  are  mere  ministerial  officers,  then  we  see  no 
good  reason  why  the  general  principle  of  law,  that  a  ministerial  of- 
ficer is  liable  for  a  wrong  done  by  him  acting  in  his  official  character, 
though  without  malice,  should  not  be  applied.  It  is  held  otherwise, 
however,  in  England,  in  New  York,  and  some  other  states.  The  rea- 
son of  these  decisions  appears  to  be  that  the  inspectors  of  elections 
are  entrusted  with  a  discretionary  authority,  and  are  quasi  judicial 
officers.  In  Massachusetts  and  Ohio  it  is  held  the  action  will  lie  with- 
out malice.  Lincoln  v.  Hapgood,  11  Mass.  350;  Blanchard  v.  Stearns, 
5  Mete.  (Mass.)  298;  Harris  v.  Whitcomb,  4  Gray  (Mass.)  433; 
Jeffries  v.  Ankeny,  11  Ohio,  373;  Anderson  v.  Millikin,  9  Ohio  St. 
568.  Some  of  these  decisions  are  based  partly  on  the  state  statute 
law  regulating  elections,  as  being  different  from  the  English  law,  but 
mainly  upon  the  necessity  of  protecting  the  highly  valued  privilege 
of  voting  when  the  law  has  provided  no  other  remedy.  We  adopt 
the  rule  of  these  decisions.-* 


McCORD  V.  HIGH. 

(Supreme  Court  of  Iowa,  ISGS.     24  Iowa,  33G.) 

The  petition  of  plaintiff  shows  that  he  is  the  owner  of  certain  lands 
in  Black  Hawk  county,  through  which  a  certain  stream  of  water  called 
Spring  creek  flows  ;  that  the  stream,  in  its  natural  channel,  meanders 
through  plaintiff's  land  and  flows  off  it  near  where  it  enters  thereon; 
that  a  public  highway  crosses  the  stream  at  its  entrance  upon  plaintiff's 
land;  that  defendant,  acting  as  road  supervisor,  "willfully  and  mali- 
ciously intending  to  injure  the  property  of  plaintiff,"  erected  across 
said  creek,  in  said  highway,  a  certain  obstruction  whereby  a  great  por- 
tion of  the  water  in  said  stream  was  diverted  from  its  natural  channel 
and  caused  to  flow  in  an  artificial  channel  away  from  the  land  of  peti- 
tioner, which  was  used  as  a  pasture ;  that  plaintiff,  in  order  to  con- 
fine said  stream  to  its  natural  channel,  filled  up  said  artificial  chan- 
nel, but  the  defendant  did  "willfully,  maliciously  and  fraudulently" 
cause  said  artificial  channel  to  be  opened,  and  enlarged  the  same  so  that 
the  water  would  be  diverted  from  the  natural  channel;  that,  on  ac- 
count of  said  obstruction  erected  by  defendant,  the  greater  part  of  the 
water  is  diverted  to  said  artificial  channel,  which  by  the  action  of  the 

24  Accord:     Elbin  v.  Wilson,  33  Md.  135  (1870). 

As  to  refusal  to  perform  ministerial  duty,  see  Amy  v.  Supervisors,  11  Wall. 
136,  20  L.  Ed.  101   (1870),  post,  p.  432;    Strickfaden  v.  Zipprick,  49  111.  286 

(1868). 


304  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

water  is  becoming  deeper  and  wider,  and  through  which,  in  the  course 
of  time,  all  the  water  of  said  stream  will  flow,  unless  said  obstruction 
erected  by  defendant  shall  be  removed.  The  water,  so  diverted,  does 
not  flow  at  all  on  plaintiff's  land,  but  re-enters  the  stream  at  a  point 
not  upon  the  same. 

The  defendant  sets  up  as  a  defense  that  he  was  the  road  supervisor 
of  the  district;  that  "in  good  faith,  and  according  to  his  best  judg- 
ment, he  caused  said  highway  to  be  repaired"  in  the  best  manner  he 
was  able,  with  the  amount  of  means  at  his  disposal,  "in  order  to  make 
the  same"  passable  for  the  public ;  that  no  obstruction  was  erected 
across  said  stream  by  him,  and  that  no  diversion  was  caused  in  the 
flow  of  the  stream;  and  denies  the  injury  complained  of  by  plain- 
till.     *     *     * 

On  motion  of  defendant,  the  court  instructed  the  jury  as  follows, 
plaintiff  excepting  thereto:  (1)  That  if  the  defendant,  acting  in  the 
discharge  of  his  duties  as  road  supervisor,  made  the  obstruction  com- 
plained of,  he  is  not  liable  therefor,  unless  the  act  was  done  mali- 
ciously and  without  probable  cause;  and  that  malice  must  be  shown 
affirmatively.  (2)  That  a  public  officer  is  not  liable  for  errors  of 
judginent;  that  the  public  have  claims  upon  him,  and  he  is  obliged 
to  act,  and  unless  his  acts  are  clearly  malicious,  and  with  the  intention 
to  injure  another,  he  is  not  liable  therefor. 

Under  these  instructions  the  jury  rendered  a  verdict  for  defendant. 
Plaintiff  moved  for  a  new  trial  on  the  ground  that  the  law  had  been  in- 
correctly given  to  the  jury.  The  motion  was  overruled,  and  plaintiff 
appeals.-^ 

Dillon.  C.  J.  I  have  had  in  my  own  mind  so  much  difficulty,  re- 
specting the  main  question  in  this  case,  viz.,  the  personal  responsibil- 
ity of  the  road  supervisor,  that  I  desire  to  state  briefly  why  I  assent  to 
a  reversal  of  the  judgment  of  the  district  court.  If  the  act  of  the 
supervisor  which  caused  the  injury  were  malicious,  I  should,  of 
course,  entertain  no  doubt  as  to  his  liability. 

But  the  doubt  I  have  had  respects  his  liability  for  injuries  not 
willfully  or  maliciously  caused  by  him.  That  the  road  supervisor  is 
exempt  from  liability  for  certain  mistakes  of  judgment,  honestly  made 
in  the  performance  of  his  official  duties,  I  have  no  question.  If  his 
acts  be  not  strictly  judicial,  they  are  in  certain  cases  (as,  for  example, 
the  kind  of  a  bridge  he  will  build  or  the  requisite  capacity  of  a  culvert) 
in  the  nature  of  judicial  acts,  and  rest  to  some  extent  upon  the  same 
principle.  The  supervisor  is  bound  to  accept  his  office  or  be  fined. 
He  is  bound  to  exercise  his  judgment  as  to  the  kind  of  improvements 
he  will  make ;  and  this  may  be  influenced  by  the  extent  or  amount  of 
means  or  resources  at  his  command.  He  may  not  in  many  cases  be 
able  to  execute  his  best  thought  or  judgment.  To  a  certain  extent, 
he  must  be  free  to  exercise  his  judgment  without  being  liable  to  have 

2  5  The  statement  is  abridged,  and  the  opinion  of  Becli,  J.,  is  omitted. 


Ch.  T)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  305 

an  action  brought  against  him  if  his  judgment  should  in  a  particular 
case  turn  out  to  be  faulty. 

But  private  rights  of  property  are  also  to  be  respected.  A  very 
old  and  just  maxim  of  the  law  is  that,  where  there  is  a  wrong,  there 
is  a  remedy.  The  law  recognizes,  as  is  very  correctly  stated  in  the 
opinion  of  Mr.  Justice  Beck,  as  high  a  right  of  property  in  the  water 
course  as  in  the  soil.  If  an  individual  obstructs  or  diverts  a  water 
course,  the  injury  is  actionable.  So  it  is  if  done  by  a  municipal  cor- 
poration. Whether  the  public  officers  of  such  corporation,  who  do 
,   the  work  which  occasions  the  damage  in  the  course  of  their  official 

duties,  are  also  liable,  admits,  in  my  mind,  of  more  doubt. 
I       The  injury  of  which   the  plaintiff   complains  is   actionable   in   its 
I   character;    but  against  whom  shall  the  action  be  brought? 

It  cannot  be  brought  against  the  road  district  of  which   the   de- 

1   fendant   is   supervisor,   because,   as   was   settled   in   White   v.   Road 

District,  9  Iowa,  203,  the  road  district  is  not,  under  our  statute,  liable 

I  to  be  sued  as  a  quasi  corporation  or  otherwise.     For  the  same  rea- 

j   son,  it  cannot  be  brought  against  the  township. 

j  And  it  would  seem  that  under  the  decisions  of  this  court  (Wilson 
[  v.  Jefferson  Co.,  13  Iowa,  183;  Brown  v.  Jefferson  Co.,  16  Iowa, 
j  339;  McCullom  v.  Black  Hawk  Co.,  21  Iowa,  409;  Bell  v.  Foutch, 
I  31  Iowa,  139)  the  bridge  or  culvert  in  question,  not  being  built  by 
j  the  county  officers  or  by  direction  of  the  county  authorities,  so  far 
I  as  shown  by  the  record,  the  county  would  not  be  liable  'for  the  injury 
j  the  plaintiff  sustained  from  the  obstruction  or  diversion  of  the  water 
I  course. 

^  So,  that,  although  the  injury  done  the  plaintiff  is  a  direct  invasion 
I  of  his  rights  of  property,  and  actionable  in  its  nature,  he  is  without 
I  remedy,  unless  it  be  against  the  defendant.  In  such  a  case,  upon 
;  principles  of  justice,  the  action  should,  I  think,  be  held  to  lie  against 
j  the  public  officer. 

\  And  the  principle  involved  in  this  holding,  and  which,  upon  the 
I  whole,  I  believe  to  be  sound,  is  this :  That  where  a  public  officer, 
j  other  than  a  judicial  one,  does  an  act  directly  invasive  of  the  private 
rights  of  others,  and  there  is  otherwise  no  remedy  for  the  injury, 
I  such  officer  is  personally  liable,  without  proof  of  malice  and  an  in- 
j  tent  to  injure.  If  this  is  so,  the  court  erred  in  its  instructions  to  the 
\  jury,  and  its  judgment  must  be  reversed. 

j  Whether  the  supervisor  would  be  liable  if  the  plaintiff*  had  a  remedy 
i  against  the  road  district,  township  or  county,  I  give  no  opinion. 

The  discretion  which  protects  such  an  officer  as  the  road  super- 
1  visor  stops  at  the  boundary  where  the  absolute  rights  of  property 
I  begin.  Suppose  the  plaintiff  had  a  mill  upon  the  stream,  would  it  do 
;  to  hold  that  the  road  officers  could,  if  they  saw  fit  or  judged  best,  en- 
■  tirely  obstruct  or  essentially  diminish  the  water? 
1      I  think  not.     And  this  view  has  the  merit  of  protecting  the  rights 

j  Fr.Adii.Law— 20 

I 


306  RELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part    2 

of  property  without,  as  I  think,  placing  these  officers  under  any  op- 
pressive responsibihty.     Cases  without  merit  against  an   officer  who 
had  simply  erred  in  judgment  would  not  meet  with  any  favor  from 
either  courts  or  juries. 
Reversed.^^ 


LOWE  V.  CONROY. 

(Supreme  Coiu-t  of  Wisconsin,  1904.     120  Wis.  l.")l.  97  N.  W.  942,  GG  L.  R.  A. 
907,  102  Am.  St.  Hep.  983.) 

Appeal  from  circuit  court,  Clark  County. 

Action  by  Jesse  Lowe  against  T.  F.  Conroy.  From  a  judgment 
for  plaintiff,  defendant  appeals.    Affirmed. 

Respondent  was  engaged  in  the  business  of  conducting  a  meat 
market  in  the  city  of  Neillsville.  Appellant  is  a  physician  residing 
there,  and  was  the  city  physician  and  health  officer.  On  August  3, 
1901,  a  steer  of  respondent's  herd  of  cattle  on  his  farm  was  found  sick 

26  Accord:  Beyer  v.  Tanner.  29  111.  135  (1862).  Tearney  v.  Smith,  8G  111. 
391  (1877).     But  see,  Huey  v.  Richardson.  2  Har.    (Del.)  20G   (1837). 

"It  was  held  in  Graves  v.  Otis,  2  Hill  (N.  Y.)  4GG,  that  trustees  of  a  village 
did  not  acquire  jurisdiction  to  cut  down  a  street  when  the  petition,  which  the 
statute  retjuired  to  be  signed  by  a  majority  of  those  liable  to  be  assessed  for 
the  work,  had  been  altered  after  it  was  signed  by  two  of  the  signers,  and 
made  to  embrace  the  sidewalk  in  question — there  not  being  a  majority  with- 
out the  two  who  signed  before  the  alteration.  This  alteration  might  or  might 
not  be  such  as  to  attract  the  attention  of  the  trustees;  and  if  it  did,  they  had 
no  means  of  ascertaining  when  it  was  made,  except  by  calling  upon  each  of 
those  signing — a  duty  which  ought  not  to  be  imposed  upon  officers  who  act 
without  compensation.  It  was  said,  if  not  decided,  in  People  v.  Commissioners 
of  Highways  of  Seward.  27  Barb.  (N.  Y.)  94,  that  commissioners  of  highways 
did  not  acquire  jurisdiction  to  lay  out  a  highway  unless  all  of  the  twelve  per- 
sons signing  the  petition  were  freeholders.  In  this  case,  again,  the  statute 
makes  no  provision  by  which  the  commissioners  can  ascertain  whether  the 
signers  are  or  are  not  freeholders.  The  conveyance,  if  to  any  one  or  more  of 
them,  may  not  be  on  record,  or,  if  on  record,  may  not  in  law  and  in  fact  con- 
vey a  freehold  estate.  Is  it  just  that  commissioners  should  be  required  at  their 
peril  to  ascertain  the  nature  of  tlie  estate  of  each  petitioner?  If,  in  such  case, 
there  is  a  want  of  jurisdiction,  the  proceeding  should  be  reversed  or  annulled. 
But  the  officer  should  not  be  held  to  be  a  trespasser,  unless  he  knows  or  has 
reason  to  know  that  he  is  acting  without  jurisdiction.  In  other  words,  the 
proceedings  are  assailable  for  want  of  jurisdiction  in  a  proceeding  brought  to 
review  or  reverse  them,  but  are  not  assailable  for  want  of  jurisdiction,  in 
an  action  against  the  officer,  or  other  collateral  proceeding."  I'orter  v.  Purdy, 
29  N.  Y.  lOG,  110,  111,  112,  113,  8G  Am.  Dec.  28:3   (1864). 

See  Daniels  v.  Hathaway,  6.5  Vt.  247,  2.54,  2G  Atl.  970,  972  (21  L.  R.  A.  3771 
(1893) :  "In  view  of  the  fact  that  selectmen  may  be  required  to  serve  without 
compensation,  their  varied  and  uncertain  duties,  the  duties  imposed  upon  i 
other  officers,  and  the  statutes  and  authorities  above  cited,  it  is  clear  that  it  is 
not  the  duty  of  selectmen,  nor  is  it  intended,  tliat  in  the  performance  of  their 
official  duties  in  respect  to  highways  they  shall  superintend,  in  person,  the 
construction  or  repair  thereof,  or  become  laborers  or  operatives  thereon.  In 
matters  relating  to  highways  they  act  as  a  board,  and  their  duties  are  to  a 
certain  extent  judicial,  or  quasi  judicial.  It  is  their  duty  to  seek  information 
as  to  the  existence  or  nonexistence  of  certain  facts,  form  a  judgment,  and 
act  accordingly.  They  are  to  determine  whetlier  other  officers  have  refused 
or  neglected  to  perform  their  duty.     If  they  find  they  have  not,  it  is  not  their 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR   MONEY.  307 

from  an  ailment  unknown  to  him,  but  supposed  to  have  resulted  from 
drinking  water  containing  paris  green.  He  called  Dr.  Brown,  a 
veterinary  surgeon,  who  gave  the  steer  an  antidote  for  paris  green 
poisoning,  but  upon  further  examination  informed  respondent  he 
believed  the  steer  was  afflicted  with  anthrax,  and  that  another  ani- 
mal of  the  herd  showed  symptoms  of  anthrax.  The  steer  died  about 
8  o'clock  in  the  evening  of  the  same  day.  Respondent  and  his  son 
flayed  him,  then  buried  the  carcass,  and  placed  the  hide  on  others 
in  the  basement  of  his  meat  market.  Dr.  Roberts,  the  state  veter- 
inarian, arrived  at  Neillsville  the  following  morning,  and  with  re- 
spondent visited  the  place  where  the  steer  had  died.  Dr.  Roberts  pro- 
cured some  blood  from  the  spot  pointed  out  by  respondent  as  the 
place  where  the  steer  had  been  flayed.  This  specimen  of  blood  was 
mounted  on  microscopic  slides  by  appellant's  brother,  a  doctor  at 
Neillsville,  who  examined  it  microscopically,  and  concluded  it  con- 
tained the  bacilli  of  anthrax.  The  same  slide  was  thereafter  ex- 
amined microscopically  by  Dr.  Russell,  the  state  bacteriologist,  who 
reported  to  appellant  that,  so  far  as  could  be  ascertained  from  the  ex- 
duty  to  order  repairs;  but  if  tliey  find  there  lias  been  a  refusal  or  neglect 
on  the  part  of  other  officers,  or  an  absence  of  other  officers,  it  is  their  duty 
to  determine  what  repairs  are  necessary,  where  they  are  most  needed,  where 
the  means  at  their  command  can  be  most  judiciously  expended,  what  dangers 
ought  to  be  guarded  against,  determine  whether  theVe  are  insufficiencies,  and, 
if  they  find  there  are,  to  adopt  plans  for  building  or  repairing  the  same,  award 
contracts  for  the  work,  or  order  the  same  repaired  upon  the  credit  of  the 
town.  Tlie  performance  of  these  duties  requires  the  exercise  of  judgment, 
and  for  the  exercise  of  this  judgment,  or  an  omission  to  exercise  such  judg- 
ment as  some  other  authority  may  think  they  ought  to  have  exercised,  they 
are  not  responsible  to  an  individual.  The  exercise  of  these  powers  is  discre- 
tionary, to  be  exercised  or  withheld  according  to  the  judgment  of  a  ma- 
jority of  the  board  as  to  what  is  necessary  and  proper.  Discretionary  power 
is,  in  its  nature,  independent,  and  to  make  those  who  wield  it  liable  to  be 
called  to  account  by  some  other  authority  is  to  take  away  discretion  and  de- 
stroy independence.  Discretion  to  a  certain  extent  implies  judicial  functions ; 
and  when  officers  act  in  such  a  capacity  they  are  not  lialjle  to  any  private 
person  for  a  neglect  to  exercise  these  powers,  nor  for  the  consequence  of  a 
lawful  exercise  of  them  where  no  corru])tion  or  malice  can  he  imputed,  and 
they  keep  within  the  scope  of  their  official  duties  and  authority.  It  is  not 
enough  to  charge  or  show  that  they  omitted  to  act  when  they  ought  to  have 
done  so,  or  that  their  decisions  were  erroneous.  Yealy  v.  Fink.  4.>  Pa.  212, 
82  Am.  Dec.  5.56;  McConnell  v.  Dewey.  5  Neb.  889;  Downer  v.  Lent,  6  Oal. 
94,  G5  Am.  Dec.  489 ;  Waldron  v.  Berry,  51  N.  H.  136 ;  Stewart  v.  Southard, 
17  Ohio,  402,  49  Am.  Dec.  403 ;  Dunlap  v.  Knapp,  14  Ohio  St.  64,  82  Am.  Dec. 
468:    Lynn  v.  Adams,  2  Ind.  143." 

Upon  the  question  of  liability  for  injury  resulting  from  the  neglect  of 
official  duties,  see  further.  Hover  v.  Barkhoof,  44  N.  Y.  113  (1870),  liability  for 
defective  highway  recognized  where  there  are  funds  for  repair ;  Bennett  v. 
Whitney,  94  N.  Y.  302  (18S1);  Hathaway  v.  Hinton,  46  N.  C.  243  (1853)  (im- 
plied recognition  by  statute) ;  Skinner  v.  Morgan,  21  111.  App.  209  (1886) ; 
Worden  v.  Witt,  4  Idaho.  404,  39  Pac.  1114,  95  Am.  St.  Rep.  70  (1895),  with 
note,  liability  denied;  1  Beven  on  Negligence  (2d  Ed.)  p.  398;  South  v.  Marv- 
land,  18  How.  396,  15  L.  Ed.  433  (1855).  sheriff  not  liable  for  default  as  con- 
servator of  the  peace,  because  his  duty  is  only  to  the  public.  So  State,  to 
Use  of  Cocking,  v.  Wade,  87  Md.  529,  40  Atl.  IW,  40  L.  R.  A.  628  (1898). 
But  see  Asher  v.  Cabell,  50  Fed.  818,  1  C,  C.  A.  093  (1892).  and  State  of  In- 
diana V.  Gobin  (C.  C.)  94  Fetl.  48  (1899),  duty  of  sheriff  toward  person  spe- 
cially placed  in  his  custody. 


308  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

amination,  the  specimen  disclosed  the  presence  of  the  bacilli  of 
anthrax.  Appellant  was  absent  from  Neillsville  August  3d  and  4th. 
Dr.  Roberts,  the  state  veterinarian,  left  Neillsville  August  4th,  giving 
directions  to  appellant's  brother  to  have  the  herd  quarantined  until 
his  return.  He  returned  August  7th,  vaccinated  the  herd  supposed 
to  have  been  exposed,  repeated  this  treatment  August  19th,  and  then 
ordered  the  quarantine  of  the  herd  and  pasture  removed.  On  Monday- 
morning,  August  5th,  appellant  returned  to  Neillsville,  was  informed 
of  these  occurrences,  held  a  consultation  with  the  mayor  of  the  city 
and  chairman  of  the  city  board  of  health  and  the  city  attorney;  later 
in  the  day  received  instructions  from  the  secretary  of  the  state 
board  of  health  to  destroy  any  hides  which  had  been  exposed,  and 
disinfect  the  shop  and  premises  if  exposed  to  anthrax  infection. 
Upon  this  and  other  information  obtained  by  appellant  he  believed 
the  steer  died  from  anthrax,  and  that  respondent's  shop  and  some 
hides  and  beef  in  respondent's  slaughter  house  had  been  exposed  to 
this  dangerous  and  infectious  disease.  He  issued  a  written  order 
August  5th,  and  directed  Dr.  Brown,  as  deputy  health  officer,  to  serve 
it  on  respondent.  This  order  notified  and  directed  respondent  to 
remove  the  hides  from  the  basement  of  his  premises,  and  destroy 
them,  and  the  beef  of  a  heifer  which  respondent  and  his  son  had 
butchered  and  prepared  for  the  market  on  the  morning  after  flaying 
and  burying  the  diseased  steer  was  also  to  be  destroyed.  This  heifer 
was  the  same  animal  that  Dr.  Brown  had  pointed  out  to  respondent 
as  having  symptoms  of  anthrax.  Respondent  refused  to  comply  with 
this  order,  and  thereafter  on  the  same  day  the  hides  and  beef  were 
burned  under  the  supervision  of  the  city  mayor,  pursuant  to  the  order 
of  August  5th. 

It  appears  that  anthrax  is  one  of  the  most  virulent  and  deadly 
diseases  known  to  science,  and  infectious  and  epidemic  in  character 
to  a  high  degree.  Upon  the  trial  the  court  found  'that  appellant 
acted  in  good  faith  in  the  discharge  of  what  he  deemed  his  duty  as 
city  physician  and  health  officer;  that  he  quarantined  respondent's 
meat  market  premises;  that  he  had  good  cause  to  believe  the  base- 
ment of  the  premises  was  a  source  of  filth  and  sickness ;  that  he 
ordered  the  destruction  of  the  hides  and  beef  which  he  believed  had 
been  exposed  to  the  infection,  and  that  this  property  was  of  a  value 
of  $239.70.  The  jury  found  that  the  steer  was  not  in  fact  afthcted 
with  any  dangerous  and  contagious  disease,  and  that  appellant  had  no 
probable  cause  to  believe  that  the  steer  was  so  afflicted.  The  court 
ordered  judgment  in  respondent's  favor,  and  awarded  him  judgment 
for  the  value  of  the  hides  and  beef  and  for  costs.  This  is  an  appeal 
from  that  judgment. 

SiEbEcker,  J.  (after  stating  the  facts).  The  appellant,  as  a  health 
officer  of  the  city  of  Neillsvihe,  seeks  to  justify  the  destruction  of  re- 
spondent's property  upon  the  authority  vested  in  the  board  of  health 
for  the   adoption  of   such  measures  to  abate  nuisances  and  remove 


Ch.  7)  ACTIONS  TO  RECOVER  DAMAGES  OR  MONEY.  i509 

sources  of  filth  and  causes  of  sickness  as  may  be  deemed  most 
effectual  to  preserve  the  public  health.  By  section  1411,  Rev.  St. 
1898,  it  is  provided  that  every  town,  village,  and  city  board  of  health 
''may  take  such  measures  and  make  such  rules  and  regulations  as 
they  may  deem  most  effectual  'for  the  preservation  of  the  public 
health.  They  may  appoint  as  many  persons  to  aid  them  in  the  exe- 
cution of  their  powers  and  duties  as  they  may  think  proper,  *  *  * 
examine  into  all  nuisances,  sources  of  filth  and  causes  of  sickness 
and  make  such  rules  and  regulations  respecting  the  same  as  they  may 
judge  necessary  for  the  protection  of  the  public  health  and  safety 
of  the  inhabitants."  Section  1412,  Rev.  St.  1898,  prescribes  as  a 
part  of  the  health  officer's  duty:  "Upon  appearance  of  any  danger- 
ous or  contagious  disease  in  the  territory  within  the  jurisdiction  of  the 
board  of  which  he  is  a  member  to  immediately  investigate  all  the 
circumstances  attendant  upon  the  appearance  of  such  disease,"  and 
"at  all  times  promptly  to  take  such  measures  for  the  prevention, 
suppression  and  control  of  any  such  disease  as  may  in  his  judgment  be 
needful  and  proper,  subject  to  the  approval  of  the  board  of  which  he 
is  a  member."  By  section  1414,  Rev.  St.  1898,  boards  of  health  are 
given  authority  to  order  nuisances  and  causes  of  sickness  removed 
from  private  property  by  the  owner  or  occupant,  and  upon  his  re- 
fusal or  neglect  to  comply  the  board  may  cause  its  removal,  and  re- 
cover the  expense  thereof. 

The  common  council  of  the  city  of  Neillsville  by  ordinances  adopted 
these  provisions  as  a  part  of  the  regulations  'for  the  preservation 
of  the  public  health,  and  provided  for  the  organization  of  the  board 
of  health,  prescribing  the  duties  of  the  board  and  its  health  officer 
in  carrying  out  the  powers  and  duties  imposed  by  law.  Neither  the 
statutes  nor  the  ordinances  of  the  city  for  the  preservation  of  the 
public  health  make  provision  for  a  hearing  before  the  board  or  other- 
wise of  the  person  charged  with  maintaining  a  nuisance,  source  of 
filth,  or  cause  of  sickness.  The  board  or  its  members  or  officers  may 
abate  and  remove  the  nuisance,  source  of  filth,  or  cause  of  sickness 
without  any  such  hearing,  even  though  such  proceeding  necessitates 
the  destruction  of  private  property. 

The  statutes  were  unquestionably  framed  upon  the  fact  that  such 
boards  must  act  immediately  and  summarily  in  cases  of  the  appearance 
of  contagious  and  malignant  diseases,  which  are  liable  to  spread  and 
become  epidemic,  causing  destruction  of  human  life.  Under  such  cir- 
cumstances it  has  been  held  that  the  Legislature  under  the  police 
power  can  rightfully  grant  to  boards  of  health  authority  to  employ 
all  necessary  means  to  protect  the  public  health,  and,  if  necessary,  go 
to  the  extent  of  destroying  private  property  when  the  emergency 
demands.  Bittenhaus  v.' Johnston,  93  Wis.  588,  66  N.  W.  805,  32 
L.  R.  A.  380;  City  of  Salem  v.  E.  Ry.  Co.,  98  Mass.  431,  96  Am. 
Dec.  650 ;  Lawton  v.  Steele,  119  N.  Y.  226,  23  N.  E.  878,  7  L.  R.  A. 


310  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

134,  16  Am.  St.  Rep.  813;  Id.,  153  U.  S.  133,  14  Snp.  Ct.  499,  38 
L.  Ed.  385. 

The  power  to  summarily  abate  nuisances  was  fully  recognized 
and  established  as  a  principle  of  the  common  law,  upon  the  ground 
that  the  requirement  of  preliminary  formal  legal  proceedings  and  a 
judicial  trial  would  result  in  defeating  the  beneficial  objects  sought  to 
be  attained.  Within  this  principle,  "quarantine  and  health  laws  have 
been  enacted  from  time  to  time  from  the  organization  of  state  govern- 
ments, authorizing  the  summary  destruction  of  imported  cargo, 
clothing,  or  other  articles  by  officers  designated,  and  no  doubt  has  been 
suggested  as  to  their  constitutionality."  Lawton  v.  Steele,  supra ;  Sen- 
tell  V.  N.  O.  &  C.  Ry.  Co.,  166  U.  S.  698,  17  Sup.  Ct.  693,  41  L. 
Ed.  1169 ;  Hart  v.  Mayor,  9  Wend.  (N.  Y.)  571,  24  Am.  Dec.  165 ; 
Health  Dept.  v.  Rector.  145  N.  Y.  32,  39  N.  E.  833,  27  L.  R.  A. 
710,  45  Am.  St.  Rep.  579  ;    Rockwell  v.  Nearing,  35  N.  Y.  308. 

The  appearance  of  a  malignant  and  contagious  disease  in  cattle  is 
in  its  nature  such  a  menace  to  the  public  health  as  to  bring  it  clearly 
within  the  class  of  cases  which  can  only  in  many  instances  be  ef- 
fectually dealt  with  by  the  destruction  of  the  animals  afflicted. 

Respondent  insists  that  he  has  the  legal  right  to  recover  his  damages 
since  the  property  w^as  not  in  fact  a  nuisance,  source  of  filth,  or  a 
cause  of  sickness,  as  contemplated  by  the  statute  for  the  preservation 
and  protection  of  the  public  health.  This  presents  the  inquiry  whether 
the  determination  of  the  health  officers  that  a  nuisance  or  cause 
of  sickness  dangerous  to  health  in  fact  existed  is  a  final  determination, 
binding  upon  respondent  as  owner  of  the  property  which  the  health 
officer  decided  must  be  destroyed  in  order  to  abate  the  nuisance 
and  remove  the  cause  of  sickness. 

The  statute,  as  stated,  makes  no  provision  giving  the  party  pro- 
ceeded against  for  such  a  nuisance  or  cause  of  sickness  an  opportunity 
to  be  heard  before  his  property  may  be  destroyed.  While  such  a 
determination  has  been  held  to  be  a  full  protection  to  all  persons 
acting  under  it  in  carrying  out  the  purposes  of  the  law — that  is,  to 
abate,  and,  if  necessary,  destroy,  that  which  is  in  fact  a  nuisance  or 
source  of  danger  to  health — yet  it  is  no  protection  for  destroying 
private  property  which  in  fact  is  no  such  nuisance  or  source  of 
danger.  This  is  upon  the  ground  that  due  process  of  law  requires 
that  the  owner  be  given  an  opportunity  to  be  heard  at  a  trial  before 
his  private  property  be  taken  and  adjudged  forfeited  for  his  miscon- 
duct, or  for  the  protection  of  the  public  health.  He  cannot  be  de- 
prived of  the  right,  either  before  or  after  such  taking  of  his  prop- 
erty, to  have  a  judicial  inquiry  whether  in  fact  he  has  forfeited  the 
right  to  his  property  by  coming  within  the  condemnation  of  the  law. 
In  such  cases,  where  a  board  of  health  has  summarily  destroyed 
property,  the  owner  may  bring  his  action  to  recover  the  damages 
sustained,  if  it  be  found  he  has  been  unjustifiably  deprived  of  it. 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  311 

In  the  absence  of  judicial  inquiry  wherein  the  owner  is  given  full 
opportunity  to  establish  that  no  nuisance  or  cause  of  sickness  exists 
as  claimed,  the  board  of  health  cannot  declare  a  thing  a  nuisance  or 
source  of  danger  to  public  health  which  is  not  so  in  fact.  Their 
authority  to  act  is  bottomed  upon  the  actual  existence  of  the  condi- 
tions which  the  statutes  declare  they  may  abate  or  remove.  Hutton 
V.  City  of  Camden,  39  N.  J.  Law,  122,  23  Am.  Rep.  203 ;  Lawton  v. 
Steele,  supra;  Cole  v.  Kegler,  64  Iowa,  59,  19  N.  W.  843;  People 
ex  rel.  v.  Board  of  Health,  140  N.  Y.  1,  35  N.  E.  320,  23  L.  R.  A. 
481,  37  Am.  St.  Rep.  522;  Health  Dept.  v.  Rector,  145  N.  Y.  32, 
39  N.  E.  833,  27  L.  R.  A.  710,  45  Am.  St.  Rep.  579,  and  cases; 
Citv  of  Orlando  v.  Pragg,  31  Fla.  Ill,  12  South.  368,  19  L.  R.  A.  196, 
34  Am.  St.  Rep.  17. 

It  is  urged  that  no  action  can  be  maintained  to  charge  appellant 
for  the  value  of  the  property  because  in  ordering  its  removal  and 
destruction  he  was  in  the  exercise  of  his  official  duty  as  city  health 
ofificer.  The  laws  for  the  preservation  of  the  public  health  make  no 
provision  for  the  payment  of  property  so  destroyed  by  mistake  on  the 
order  of  health  officers.  The  question  then  arises,  who  is  liable  for 
the  value  of  this  property  under  the  facts  and  circumstances  of  this 
case? 

The  jury  found  that  the  steer  was  not  afflicted  with  a  contagion, 
and  that  the  beef  and  hides  destroyed  were  not  infected  with  anthrax. 
It  is  clear  that  the  city  is  not  liable  under  the  decisions  of  this  court. 
In  the  case  of  Kempster  v.  City  of  Milwaukee,  103  Wis.  421,  79  N. 
W.  411,  it  is  said :  "In  carrying  out  the  laws  for  the  preservation 
of  the  public  health  the  city  is  performing  a  duty  which  it  owes  to  the 
whole  public  as  distinguished  from  a  mere  corporate  duty.  It  is  a 
duty  which  it  is  bound  to  see  performed  in  pursuance  of  law  as  one 
of  the  governmental  agencies,  but  not  a  duty  from  which  it  derives 
special  benefit  or  pecuniary  advantage  in  its  corporate  or  private 
capacity.  Hayes  v.  Oshkosh,  33  Wis.  314,  14  Am.  Rep.  760,  and 
cases  cited." 

As  here  indicated,  under  the  laws  of  this  state  no  liability  on  the 
part  of  a  municipality  arises  for  injuries  resulting  from  the  acts  or  de- 
fault of  its  officers  while  performing  a  duty  imposed  upon  it  as  a 
governmental  agency  for  the  public  at  large.  Durkee  v.  City  of 
Kenosha,  59  Wis.  123,  17  N.  W.  677,  48  Am.  Rep.  480;  Folk  v. 
City  of  Milwaukee,  108  Wis.  359,  84  N.  W:  420. 

Appellant  contends  that  he  is  not  liable  in  this  action  upon  the 
ground  that  the  powers  vested  in  members  and  officers  of  a  board  of 
health  are  discretionary  in  character,  and  that  the  duty  of  determining 
what  are  causes  of  sickness  affecting  the  public  health  are  [is]  quasi 
judicial  in  character.  The  acts  of  appellant,  as  appears  from  the 
above  statement  of  facts,  were  within  the  scope  of  his  duty  as  health 
officer,  and  come  within  the  class  of  quasi  judicial  acts.     It  is  the 


312  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part    3 

general  rule  that  such  officers  are  not  liable  in  damages  to  private 
persons  for  injuries  which  may  result  from  their  official  action  done 
in  the  honest  exercise  of  their  judgment  within  the  scope  of  their 
authority,  however  erroneous  or  mistaken  that  action  may  be,  pro- 
vided there  be  an  absence  of  malice  or  corruption,  Dillon,  Municipal 
Corporations,  §  277,  and  note ;  Steele  v.  Dunham,  26  Wis.  393 ; 
Druecker  v.  Salomon,  21  Wis.  G21,  94  Am.  Dec.  571 ;  Smith  v.  Gould, 
61  Wis.  31,  20  N.  W.  309;  Gates  v.  Young,  82  Wis.  272,  52  N.  W. 
178. 

The  facts  and  circumstances  show,  however,  that  respondent's 
private  property  rights  have  been  unjustifiably  invaded,  and  that, 
unless  it  be  that  defendant  and  those  who  actually  committed  the 
trespass  in  wrongfully  destroying  his  property  are  liable,  he  will  be 
remediless  in  the  law.  Under  such  circumstances  quasi  judicial 
officers  have  been  held  liable  to  respond  in  damages  upon  the  ground 
that  the  exercise  of  this  discretion  is  limited  by  the  superior  right 
guarantying  to  every  person  immunity  from  having  his  private  prop- 
erty rights  invaded  except  under  the  regular  course  of  law,  sanctioned 
by  the  established  customs  and  usages  of  the  courts.  The  discretion 
in  which  such  officers  are  protected  must  be  limited  to  the  line  where 
their  acts  invade  the  private  property  rights  of  another,  for  which 
invasion  the  law  awards  no  redress  other  than  an  action  against  the 
one  actually  committing  the  trespass.  Hubbell  v.  Goodrich,  37  Wis. 
84;  Houston  v.  State,  98  Wis.  481,  74  N.  W.  Ill,  42  L.  R.  A.  39; 
Cubit  V.  O'Dett,  51  Mich.  347,  16  N.  W.  679;  Miller  v.  Horton,  152 
Mass.  541,  26  N.  E.  100,  10  L.  R.  A.  116,  23  Am.  St.  Rep.  850; 
Pearson  v.  Zehr,  138  111.  48,  29  N.  E.  854,  32  Am.  St.  Rep.  113; 
McCord  V.  High,  24  Iowa,  336.  The  circuit  court  proceeded  upon 
this  principle,  and  held  appellant  liable  in  damages  resulting  from 
the  destruction  of  the  property,  because  it  was  not  in  fact  a  nuisance 
or  cause  of  sickness  endangering  the  public  health. 

This  course  is  assailed  by  appellant  upon  the  authority  of  Path  v. 
Koeppel,  72  Wis.  289,  39  N.  W.  539,  7  Am.  St.  Rep.  867.  This 
was  an  action  against  the  defendant,  as  meat  inspector  of  the  city  of 
Milwaukee,  for  the  destruction  of  a  quantity  of  fish  as  unwhole- 
some for  food.  The  action  was  upon  the  ground  that  his  acts  were 
without  authority,  but  the  court  held  that  he  had  authority  to  inspect 
fish,  and  judge  whether  they  were  a  proper  article  of  diet,  and  to  de- 
stroy them  if  he  found  they  were  unwholesome.  It  is  stated  in  the 
opinion :  "He  is  vested  with  the  power  to  determine  the  quality  and 
healthfulness  of  fish  in  the  market,  and,  if  unwholesome  or  unfit  to 
be  eaten,  to  condemn  and  destroy  them.  This  is  a  high  and  respon- 
sible judicial  power,  *  *  ='-  and  the  officer  exercising  such  a  power 
is  within  the  protection  of  that  principle  that  a  judicial  officer  is  not 
responsible  in  an  action  for  damages  to  any  one  for  any  judgment  he 
may  render,  however  erroneously,  negligently,  ignorantly,  corruptly, 
or  maliciously  he  may  act  or  render  it,  if  he  acts  within  his  jurisdic- 


Ch.  7)  ACTIONS  TO   RECOVER  DAMAGES  OR  MONEY.  313 

tion" — citing-,  among  the  authorities  in  support  of  this  proposition, 
Raymond  v.  Fish,  51  Conn.  80,  50  Am.  Rep.  3." 

The  decision  arose  on  demurrer,  and  seems  to  assume  that  the  fish 
destroyed  were  in  fact  unwholesome,  and  not  a  fit  article  of  diet. 
Under  this  assumption  of  fact  the  decision  was  in  accord  with  the 
doctrine  that  health  officers  are  not  liable  in  damages  for  destroying 
property  when  such  property  is  in  fact  a  source  of  danger  to  the  public 
health.  The  opinion,  however,  seems  to  go  upon  the  ground  that  such 
quasi  judicial  officers  are  under  all  circumstances  absolutely  pro- 
tected from  liability  to  the  owner  of  the  property,  and  are  entitled  to 
the  same  protection  as  an  officer  of  a  judicial  tribunal  in  the  discharge 
of  official  action  within  his  jurisdiction.  This  is  not  the  rule  es- 
tablished under  the  adjudications.  Upon  the  authorities  cited  and  the 
reason  advanced  therein  the  rule  is :  "Inasmuch  as  the  law  quite 
universally  protects  private  property,  *  *  *  the  judgment  or 
discretion  of  a  quasi  judicial  officer,  though  exercised  honestly  and 
in  good  faith,  does  not  protect  him  where,  by  virtue  of  it,  he  under- 
takes to  invade  the  private  property  rights  of  others,  to  whom  no 
other  redress  is  given  than  an  action  against  the  officer."  Mechem, 
Public  Officers,  §  642,  and  cases  cited.  In  so  far  as  Fath  v.  Koeppel, 
supra,  is  in  conflict  with  this  conclusion,  it  must  be  deemed  over- 
ruled.    *     *     * 

The  evidence  adduced  fully  sustains  the  findings  of  the  jury.  Upon 
the  grounds  stated,  respondent  was  entitled  to  a  judgment  for  the 
value  of  the  property  destroyed. 

The  judgment  of  the  circuit  court  is  affirmed.-® 

27  In  Raymond  v.  Fisli,  51  Conu.  80,  99,  50  Am.  Rep.  3  (1S&3),  an  action  to 
recover  damages  for  the  removal  of  bril^h  with  oysters  growing  on  It,  brought 
against  persons  acting  under  an  order  of  the  board  of  health.  Park,  C.  J.,  said: 
"By  the  common  law  a  party  has  the  right  to  defend  himself  from  any  assail- 
ant, even  to  the  taking  of  life  when  necessary,  and  even  to  the  taking  of  life 
when  not  necessary  in  fact,  but  apparently  so.  If  life  may  be  protected  by 
destroying  life,  when  apparently  necessary,  but  not  so  in  fact,  may  not  life 
be  protected  by  destroying  property  when  apparently  necessary,  though  after- 
wards discovered  not  so  in  fact?  But  it  may  be  said  that  this  right  of  self- 
defense  comes  when  the  assailed  party  seems  to  be  driven  to  the  last  extrem- 
ity. So  here  the  justification  of  the  board  of  health  in  the  destruction  of  prop- 
erty must  come  in  seemingly  extreme  cases,  where  there  is  reasonable  ground 
to  believe  that  immediate  action  is  necessary  for  the  preservation  of  the  life 
and  health  of  the  inhabitants,  and  w'here  there  is  reasonable  ground  to  be- 
lieve the  supposed  nuisance  to  be  one  in  fact.  We  go  no  farther  in  this  case 
than  its  exigencies  require.  AVe  leave  undecided  how  far  the  board  of  health 
may  go  in  other  cases,  where  the  destruction  of  property  may  not  seem  to 
require  such  summary  action.  It  is  expressly  found  in  the  case  that  the 
board  acted  in  good  faith  throughout  these  transactions,  and  in  addition  there- 
to such  facts  are  detailed  as  go  to  show  that  they  acted  with  extreme  caution. 
AYe  cannot  doubt  the  constitutionality  of  the  act  when  rightly  considered.  It 
is  nothing  more  or  less  than  a  police  regulation.  The  property  was  not  taken 
for  public  use  w'ithiu  tlie  meaning  of  the  Constitution.  It  was  destroyed  for 
the  protection  of  the  public  health.  *  *  *  we  advise  judgment  for  the 
defendants." 

See  Whidden  v.  Cheever,  69  N.  H.  142,  44  Atl.  908,  76  Am.  St.  Rep.  154  (1897). 

28  See,  also,  Underwood  v.  Green,  42  N.  Y.  140  (1870);  Miller  v.  Horton,  152 


314  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 


SECTION  35.— SAME— AGAINST  FEDERAL  OFFICERS 


TRACY  V.  SWARTWOUT. 
(Supreme  Court  of  United  States,  1836.     10  Pet.  80,  9  L.  Ed.  354.) 

Error  to  the  Circuit  Court  for  the  Southern  District  of  New  York. 

This  action  was  commenced  by  the  plaintiffs  in  error,  in  the 
Superior  Court  of  the  City  of  New  York,  and  on  the  suggestion  of 
the  defendant  that  the  suit  was  instituted  against  him  for  acts  done 
by  him  under  the  revenue  laws,  as  collector  for  the  district  of  the 
city  of  New  York,  and  praying  that  the  same  should  be  removed  to 
the  Circuit  Court  of  the  United  States  for  the  Southern  District  of 
New  York,  the  cause  was   so  removed  to  October  term,   1833. 

The  declaration  was  in  trover  for  certain  casks  of  syrup  of  sugar 
cane.     *     *     *  ^^ 

McLean,  Justice,  delivered  the  opinion  of  the  court. 

This  case  was  brought  into  this  court  by  a  writ  of  error  to  the  Cir- 
cuit Court  of  the  Southern  District  of  New  York.  The  suit  was 
prosecuted  in  that  court,  to  recover  damages  from  the  defendant,  who, 
as  collector  of  the  customs,  had  refused  to  allow  the  plaintiffs  to  enter 
and  receive  the  payment  of  the  lawful  duties,  on  certain  casks  of 
syrup  of  sugar  cane,  which  they  had  imported  into  the  port  of  New 
York.  It  is  admitted  that  the  law  imposed  no  more  duty  on  the  article 
than  fifteen  per  cent,  ad  valorem,  although  the  collector,  acting  under 
the  instructions  of  the  Secretary  of  the  Treasury,  required  bond  for 
the  payment  of  the  above  duty,  or,  should  it  be  required,  a  duty  of 
three  cents  per  pound.  No  bond  was  given,  and  the  syrup  remained 
in  the  possession  of  the  collector  for  a  long  time,  by  which  means  its 
value  was  greatly  deteriorated.  The  question  for  consideration  arises 
out  of  a  bill  of  exceptions  in  which  the  evidence  is  stated  at  large, 
showing  the  quality  of  the  syrup,  the  number  of  gallons  imported,  and 
the  refusal  of  the  defendant  to  take  bond  for  the  fifteen  per  cent,  ad 
valorem  duty. 

It  was  admitted  by  the  counsel  of  the  plaintiffs  that  the  defendant 
acted  throughout  with  entire  good  faith,  and  under  instructions  from 

Mass.  540,  2G  N.  E.  100,  10  L.  R.  A.  116.  23  Am.  St.  Rep.  850  (1891),  post.  p.  535. 
New  York  Agricultural  Law  (1901)  §  70a:  "The  actual  appraised  value 
*  *  *  of  all  animals  slaughtered  under  the  provisions  of  this  article 
[Diseases  of  Domestic  Animals],  which  shall  be  found  upon  a  post  mortem 
examination  not  to  have  had  the  disease  for  which  they  were  slaughtered,  un- 
less the  same  were  killed  on  account  of  the  violation  of  quarantine  regula- 
tions, shall  be  paid  to  the  owners  of  such  animals.     *     *     *  " 

See  New  York  City  Charter  1901  (Laws  1901,  c.  4GG)  §  1196,  post,  p.  35& 
2  9  The  rest  of  the  statement  of  facts  and  a  portion  of  the  opinion  are  omit- 
ted. 


Ch.  7)  ACTIONS   TO   RECOVER  DAMAGES   OR  MONEY.  315 

the  Treasury  Department.  The  plaintiffs'  counsel  offered  to  prove 
that  they  were  unable  to  give  bonds  for  duties  at  three  cents  per 
pound,  though  they  did  not  state  that  fact  to  the  defendant  at  the 
time  they  offered  to  make  the  entry.  The  court  overruled  this  testi- 
mony, and  instructed  the  jury  "that,  admitting  the  merchandise  in 
question  was  only  subject  to  an  ad  valorem  duty  of  fifteen  per  cent., 
yet  the  circumstances  under  which  the  dispute  about  the  rate  of  duties 
arose  ought  not  to  subject  the  collector  to  the  payment  of  more 
than  nominal  damages ;  that  the  collector  was  pursuing  what  he 
believed  to  be  the  true  construction  of  the  law,  and  whatever  in- 
jury the  plaintiffs  may  have  sustained,  in  not  receiving  their  goods 
at  an  earlier  day,  grew  out  of  their  own  conduct  in  not  entering  the 
goods  in  the  manner  offered  by  the  collector,  at  fifteen  per  cent,  ad 
valorem,  taking  the  bond,  however,  to  receive  the  payment  of  three 
cents  per  pound,  if  such  should  be  the  legal  rate  of  duties  demandable, 
merely  placing  the  case  in  a  situation  to  have  the  question  judicially 
decided,  as  to  the  rate  of  duty,  no  intimation,  at  the  time,  being  given 
that  it  would  occasion  any  inconvenience  to  the  plaintiffs  to  give  the 
bond  so  required  by  the  collector."  Under  this  construction,  the  jury 
found  a  verdict  for  six  cents  damages  and  six  cents  costs. 

There  can  be  no  doubt  that  the  Circuit  Court  decided  correctly 
in  overruling  the  evidence  of  inability  in  the  plaintiffs  to  give  the  bond 
demanded  by  the  defendant.  The  materiality  of  this  evidence  is  not 
perceived ;  and  if  it  had  been  material  it  ought  not  have  been  re- 
ceived, unless  the  fact  of  inability  had  been  made  known  to  the  de- 
fendant, at  the  time  the  bond  was  required.     *     *     * 

The  collector  of  the  customs  is  a  ministerial  officer.  He  acts  under 
the  instructions  of  the  Secretary  of  the  Treasury,  who  is  expressly 
authorized  to  give  instructions,  as  to  the  due  enforcement  of  the  reve- 
nue laws.  Do  these  instructions,  when  not  given  in  accordance  with 
the  law,  afford  a  justification  to  the  collector,  or  exonerate  him  from 
the  payment  of  adequate  damages  for  an  injury  resulting  from  his 
illegal  acts?  The  Circuit  Court,  in  their  charge  to  the  jury,  did  not 
consider  these  instructions  as  a  justification  to  the  defendant;  and 
in  this  they  were  unquestionably  correct.  The  Secretary  of  the 
Treasury  is  bound  by  the  law;  and  although,  in  the  exercise  of  his 
discretion,  he  may  adopt  necessary  forms  and  modes  of  giving  ef- 
fect to  the  law,  yet  neither  he  nor  those  who  act  under  him  can  dis- 
pense with,,  or  alter,  any  of  its  provisions.  It  would  be  a  most  dang^^r- 
ous  principle  to  establish  that  the  acts  of  a  ministerial  officer,  when 
done  in  good  faith,  however  injurious  to  private  rights  and  unsup- 
ported by  law,  should  afford  no  ground  for  legal  redress.  The  facts 
of  the  case  under  consideration  will  forcibly  illustrate  this  principle. 
The  importers  offer  to  comply  with  the  law,  by  giving  bond  for  the 
lawful  rate  of  duties ;  but  the  collector  demands  a  bond  in  a  greater 
amount  than  the  full  value  of  the  cargo.  The  bond  is  not  given,  and 
the  property  is  lost,  or  its  value  greatly  reduced,  in  the  hands  of  the 


;U6  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

defendant.  Where  a  ministerial  officer  acts  in  good  faith,  for  an  in- 
jury done  he  is  not  Hable  to  exemplary  damages;  but  he  can  claim  no 
further  exemption  where  his  acts  are  clearly  against  law.  The  col- 
lector has  a  right  to  hold  possession  of  imported  goods  until  the  duties 
are  paid  or  secured  to  be  paid,  as  the  law  requires.  But,  if  he  shall 
retain  possession  of  the  goods,  and  refuse  to  deliver  them,  after  the 
duties  shall  be  paid,  or  bond  given  or  tendered,  for  the  proper  rate 
of  duties,  he  is  liable  for  the  damages  which  may  be  sustained  by 
this    refusal.     *     *     * 

Some  personal  inconvenience  may  be  experienced  by  an  officer 
who  shall  be  held  responsible  in  damages  for  illegal  acts  done  under 
instructions  ®f  a  superior;  but,  as  the  government  in  such  cases  is 
bound  to  indemnify  the  officer,  there  can  be  no  eventual  hardship. 
The  judgment  of  the  Circuit  Court  must  be  reversed,  and  the  cause 
remanded   to  that  court  for   further  proceedings. 

Judgment   reversed.^" 


ELLIOTT  v.  SWARTWOUT. 

(Supreme  Court  of  United  States,  183G.     10  Pet.  137,  9  L.  Ed.  373.) 

Certificate  of  division  from  the  Circuit  Court  for  the  Southern 
District  of  New  York. 

The  suit  was  originally  instituted  in  the  Superior  Court  of  the  City 
of  New  York,  by  the  plaintiff  against  the  defendant,  the  collector  of 
the  port  of  New  York,  and  was  removed  by  certiorari  into  the  Circuit 
Court  of  the  United  States. 

The  action  was  assumpsit,  to  recover  from  the  defendant  the  sum 
of  $3,178,  received  by  him  for  duties,  as  collector  of  the  port  of  New 
York,  on  an  importation  of  worsted  shawls  with  cotton  borders,  and 
worsted  suspenders  with  cotton  straps  or  ends.  The  duty  was  levied 
at  the  rate  of  fifty  per  centum  ad  valorem,  under  the  second  clause 
of  the  second  section  of  the  act  of  the  14th  July,  1833,  entitled  "An 
act  to  alter  and  amend  the  several  acts  imposing  duties  on  imports," 
as  manufactures  of  wool,  or  of  which  wool  is  a  component  part.  The 
plea  of  non  assumpsit  was  pleaded  by  the  defendant  in  bar  of  the 
action. 

The  following  points  were  presented,  during  the  progress  of  the 
trial,  for  the  opinion  of  the  judges,  and  on  which  the  judges  were 
opposed  in  opinion:  ^^ 

3.  Whether  the  collector  is  personally  liable  in  an  action  to  re- 
cover back  an  excess  of  duties  paid  to  him  as  collector,  and  by  him 
paid,  in  the  regular  and  ordinary  course  of  his  duty,  into  the  treasury 

30  Compare  Averill  v.  Smith,  17  Wall.  82,  21  L.  Ed.  G13   (3872). 

31  The  first  two  points,  and  the  part  of  the  opinion  relating  thereto,  ore 
omitted. 


!     Ch.  7)  ACTIONS   TO   RECOVER  DAMAGES   OR   MONEY.  317 

I 

I  of  the  United  States,  he,  the  collector,  acting  in  good  faith,  and  under 
j  instructions  from  the  Treasury  Department;  a  notice  having  been 
j  given,  at  the  time  of  payment,  that  the  duties  were  charged  too  high, 
[  and  that  the  party  paying,  so  paid  to  get  possession  of  his  goods,  and 
intended  to  sue  to  recover  back  the  amount  erroneously  paid,  and  a 
I  notice  not  to  pay  over  the  amount  into  the  treasury.  These  several 
I  points  of  disagreement  were  certified  to  this  court  by  the  direction 
I    of  the  judges  of  the  Circuit  Court. 

I  Thompson_,  j.,  delivered  the  opinion  of  the  court.  *  *  * 
j  3.  The  case  put  by  the  third  point  is  where,  at  the  time  of.  payment, 
j  notice  is  given  to  the  collector  that  the  duties  are  charged  too  high, 
j  and  that  the  party  paying  so  paid  to  get  possession  of  his  goods, 
}  and  accompanied  by  a  declaration  to  the  collector  that  he  intended  to 
!  sue  him  to  recover  back  the  amount  erroneously  paid,  and  notice 
gfiven  to  him  not  to  pay  it  over  to  the  treasury.  This  question  must 
'  be  answered  in  the  afifirmative,  unless  the  broad  proposition  can  be 
I  maintained  that  no  action  will  lie  against  a  collector  to  recover  back 
i  an  excess  of  duties  paid  him,  but  that  recourse  must  be  had  to  the 
j  government  for  redress.  Such  a  principle  would  be  carrying  an  ex- 
emption to  a  public  officer  beyond  any  protection  sanctioned  by  any 
j  principles  of  law  or  sound  public  policy.  The  case  of  Irving  v.  Wil- 
j  .son  and  Another,  4  T.  R.  485,  was  an  action  for  money  had  and 
I  received,  against  custom-house  officers,  to  recover  back  money  paid 
{  to  obtain  the  release  and  discharge  of  goods  seized,  that  were  not 
j  liable  to  seizure,  and  the  action  was  sustained.  Lord  Kenyon  ob- 
served  that  the  revenue  laws  ought  not  to  be  made  the  means  of 
I  oppressing  the  subject,  that  the  seizure  was  illegal,  that  the  defend- 
ants took  the  money  under  circumstances  which  could  by  no  pos- 
j  sibility  justify  them,  and  therefore  this  could  not  be  called  a  volun- 
i   tary  payment. 

j       The  case  of  Greenway  v.  Hurd,  4  T.  R.  554,  was  an  action  against 
an  excise  officer,  to  recover  back  duties  illegally  received;    and  Lord 
Kenyon   does   say  that  an  action   for  money  had  and   received  will 
not  lie  against  a  known  agent,  but  the  party  must  resort  to  the  su- 
perior.    But  this  was  evidently  considered  a  case  of  voluntary  pay- 
|i  ment.     The  plaintiff  had  once  refused  to  pay,  but   afterwards  paid 
the  money;    and  this  circumstance  is  expressly  referred  to  by  Bul- 
!  ler,  Justice,  as  fixing  the  character  of  the  payment.     He  says,  though 
the  plaintiff  had  once  objected  to  pay  the  monc^y,  he  seemed  after- 
i  wards  to  waive  the  objection,  by  paying  it.     And  Lord  Kenyon  con- 
j  sidered  the  case  as  falling  within  the  principle  of  Sadler  v.  Evans,  4 
I  Burr.  1984,  which  has  already  been  noticed.     In  the  case  of  Snow- 
I  den  V.  Davis,  1  Taunt.  358,  it  was  decided  that  an  action  for  money 
I  had  and  received  would  lie  against  a  bailifif,  to  recover  back  money 
I  paid  through  compulsion,  imder  color  of  process,  by  an  excess  of 
j  authority,  although  the  money  had  been  paid  over.     The  court  say 
I  the  money  was  paid  to  [by]  the  plaintiff,  under  the  threat  of  a  distress  ; 


318  RELIEF  AGAINST   ADMINISTRATIVE   ACTION.  (Part    3 

and  although  paid  over  to  the  sheriff,  and  by  him  into  the  exchequer, 
the  action  well  lies.  The  plaintiff  paid  it  under  terror  of  process,  to 
redeem  his  goods,  and  not  with  intent  that  it  should  be  paid  over  to 
any  one. 

The  case  of  Ripley  v.  Gelston,  9  Johns.  (N.  Y.)  201,  6  Am.  Dec. 
271,  was  a  suit  against  a  collector  to  recover  back  a  sum  of  money 
demanded  by  him  for  the  clearance  of  a  vessel.  The  plaintiff  ob- 
jected to  the  payment  as  being  illegal,  but  paid  it  for  the  purpose 
of  obtaining  the  clearance,  and  the  money  had  been  paid  by  the 
collector  into  the  Branch  Bank,  to  the  credit  of  the  Treasurer.  The 
defense  was  put  on  the  ground  that  the  money  had  been  paid  over, 
but  this  was  held  insufficient.  The  money,  say  the  court,  was  de- 
manded as  a  condition  of  the  clearance;  and  that  being  established, 
the  plaintiff  is  entitled  to  recover  it  back,  without  showing  any  no- 
tice not  to  pay  it  over.  The  cases  which  exempt  an  agent  do  not  ap- 
ply. The  money  was  paid  by  compulsion.  It  was  extorted  as  a 
condition  of  giving  a  clearance,  and  not  with  intent  or  purpose  to 
be  paid  over.  In  the  case  of  Clinton  v.  Strong,  9  Johns.  (N.  Y.) 
370,  the  action  was  to  recover  back  certain  costs,  which  the  marshal 
had  demanded,  on  delivering  up  a  vessel  which  had  been  seized. 
which  costs  the  court  considered  illegal;  and  one  of  the  questions 
was  whether  the  payment  was  voluntary.  The  court  said  the  pay- 
ment could  not  be  voluntary;  the  costs  were  exacted  by  the  officer, 
colore  officii,  as  a  condition  of  the  redelivery  of  the  property;  and 
that  it  would  lead  to  the  greatest  abuse  to  hold  that  a  payment,  un- 
der such  circumstances,  was  a  voluntary  payment,  precluding  the 
party  from  contesting  it  afterwards.  The  case  of  Hearsey  v.  Pruyn, 
7  Johns.  (N.  Y.)  179,  was  an  action  to  recover  back  toll  which  had 
been  illegally  demanded;  and  Spencer,  Justice,  in  delivering  the 
opinion  of  the  court,  says  the  law  is  well  settled  that  an  action  may 
be  sustained  against  an  agent,  who  has  received  money  to  which  the 
principal  had  no  right,  if  the  agent  has  had  notice  not  to  pay  it  over. 
And  in  the  case  of  Frye  v.  Lockwood,  4  Cow.  (N.  Y.)  45G,  the  court 
adopts  the  principle  that  when  money  is  paid  to  an  agent,  for  the 
purpose  of  being  paid  over  to  his  principal,  and  is  actually  paid  over, 
no  suit  will  lie  against  the  agent  to  recover  it  back.  But  the  dis- 
tinction taken  in  the  case  of  Ripley  v.  Gelston  is  recognized  and 
adopted,  that  the  cases  which  exempt  an  agent,  when  the  money  is 
paid  over  to  his  principal  without  notice,  do  not  apply  to  cases  where 
the  money   is  paid  by  compulsion,  or  extorted  as   a   condition,   etc. 

From  this  view  of  the  cases,  it  may  be  assumed  as  the  settled  doc- 
trine of  the  law  that,  where  money  is  illegally  demanded  and  re- 
ceived by  an  agent,  he  cannot  exonerate  himself  from  personal  re- 
sponsibility by  paying  it  over  to  his  principal,  if  he  has  had  notice  not 
to  pay  it  over.  The  answer,  therefore,  to  the  third  point,  must  be 
that  the   collector  is  personally  liable  to  an   action   to  recover  back 


Ch.  7)  ACTIONS   TO   RECOVER  DAMAGES   OR  MONEY.  319 

an  excess  of  duties  paid  to  him  as  collector,  under  the  circumstances 
stated  in  the  point,  although  he  may  have  paid  over  the  money  into 
the  treasury.     *     *     * 


GARY  V.  CURTIS. 
(Supreme  Court  of  United  States,  1845.     3  How.  23G,  11  L.  Ed.  576.) 

This  case  came  up  from  the  Circuit  Court  of  the  United  States  for 
the  Southern  District  of  New  York,  on  a  certificate  of  division  in 
opinion  between  the  judges  thereof. 

The  action  was  brought  in  the  Circuit  Court  to  recover  money  paid 
to  Curtis,  as  collector  of  the  port  of  New  York,  for  duties.  The 
declaration  contained  the  common  money  counts,  and  the  defend- 
ant pleaded  the  general  issue.  The  cause  was  tried  at  November 
term,  1842. 

The  jury  found  for  the  plaintiffs,  subject  to  the  opinion  of  the 
court,  among  other  things : 

(1)  That  the  plaintififs  paid  the  sum  of  $181.75  to  the  defendants, 
on  the  3d  of  July,  18-11,  for  duties  on  the  goods  imported  as  being- 
raw  silk. 

(2)  That  the  goods  on  which  the  duties  were  demanded  and  paid 
were  not  raw  silk,  but  a  manufactured  article. 

(3)  That  the  money  so  paid  was  under  a  written  protest,  made 
at  the  time  of  payment. 

(4)  That  the  money  had  been  paid  into  the  treasury  by  the  defend- 
ant, in  the  month  of  July,  1841,  and  before  the  commencement  of 
this  suit. 

Upon  the  argument  of  this  cause,  after  verdict,  several  cpiestions 
arose,   among  others   the    following,   viz. : 

Whether  or  not  the  second  section  of  the  act  of  Congress,  approved 
on  the  3d  day  of  March,  1839,  entitled  "An  act  making  appropriations 
for  the  civil  and  diplomatic  expenses  of  government  for  the  year 
1839,"  was  a  bar  to  the  action? 

On  this  question  the  opinions  of  the  judges  were  opposed. 

Mr.  Justice  Daniel  delivered  the  opinion  of  the  court.^^     *     «     * 

It  has  been  urged  that  the  clause  of  the  act  of  1839  ^^  declaring 

3  2  Only  a  portion  of  the  opinion  is  printed. 

3  3  "Tliat  from  and  after  the  passage  of  this  act,  all  money  paid  to  any  col- 
lector of  the  customs,  or  to  any  ijerson  acting  as  such,  for  unascertained  du- 
ties, or  for  duties  paid  under  protest  against  the  rate  or  amount  of  du- 
ties charged,  shall  be  placed  to  the  credit  of  the  Treasurer  of  the  United 
States,  kept  and  disposed  of  as  all  other  money  paid  for  duties  Is  required 
by  law,  or  by  regulation  of  the  Treasury  Department,  to  be  placed  to  the 
credit  of  the  Treasurer,  kept  and  disposed  of ;  and  it  shall  not  be  held  by 
said  collector  or  person  acting  as  such,  to  await  any  ascertainment  of  duties, 
or  the  result  of  any  litigation  in  relation  to  the  rate  or  amount  of  duty  legal- 
ly chargeable  and  collectible  in  any  case  where  money  is  so  paid ;  but  when- 
ever it  shall  be  shown  to  the  satisfaction  of  the  Secretary  of  the  Treasury, 
that  in  any  case  of  unascertained  duties,  or  duties  paid  under  protest,  more 


320  RELIEF  AGAINST   ADMINISTRATIVE   ACTION.  (Paxt    3 

that  the  money  received  shall  not  be  held  by  any  collector  to  await 
any  ascertainment  of  duties,  or  the  result  of  any  litigation  in  relation 
to  the  rate  or  amount  of  duties  legally  chargeable  and  collectible  in 
any  case  where  money  is  so  paid,  shows  that  Congress  did  not  mean 
to  deprive  the  party  of  his  action  of  assumpsit  against  the  collector, 
that  litigation  of  that  description  was  still  contemplated,  and  that  the 
only  object  of  the  law  was  to  place  the  money  in  dispute  in  the  pos- 
session of  the  Treasurer,  to  await  a  decision,  instead  of  leaving  it  in 
the  hands  of  the  collector.  The  court  cannot  assent  to  this  construc- 
tion. It  will  be  remembered  that  the  two  principal  cases  in  which 
collectors  have  claimed  the  right  to  retain  have  been  those  of  un- 
ascertained duties,  and  of  suits  brought,  or  threatened  to  be  brought, 
for  the  recovery  of  duties  paid  under  protest.  It  is  matter  of  his- 
tory that  the  alleged  right  to  retain  on  these  two  accounts  had  led 
to  great  abuses,  and  to  much  loss  to  the  public;  and  it  is  to  these 
two  subjects,  therefore,  that  the  act  of  Congress  particularly  addresses 
itself.  It  begins  by  declaring  that  all  money  received  on  these  ac- 
counts shall  be  paid  into  the  treasury,  and  then,  in  order  to  show 
that  the  collector  is  not  the  person  with  wdiom  any  claims  for  this 
money  are  to  be  adjusted,  or  who  is  to  be  held  responsible  for  it. 
the  act  proceeds  to  declare  that  the  money  shall  not  remain  in  his 
hands  even  if  the  protest  is  followed  by  a  suit,  that,  notwithstanding 
suit  may  be  brought  against  him,  he  shall  still  pay  the  money  into 
the  treasury,  and  that  the  controversy  shall  be  adjusted  with  the 
Secretary.  Congress  supposed,  probably,  that  a  party  might  choose 
to  sue  the  collector,  as  has  been  done  in  this  instance;  but  it  does 
not  by  any  means  follow  that  it  was  intended  to  make  him  liable 
in  the  suit,  or  to  give  the  party  the  right  of  recovery  against  him. 

It  is  contended,  however,  that  the  language  and  the  purposes  of 
Congress,  if  really  what  we  hold  them  to  be  declared  in  the  statute 
of  1839,  cannot  be  sustained,  because  they  would  be  repugnant  to  the 
Constitution,  inasmuch  as  they  would  debar  the  citizen  of  his  right 
to  resort  to  the  courts  of  justice.  The  supremacy  of  the  Constitu- 
tion over  all  officers  and  authorities,  both  of  the  federal  and  state 
governments,  and  the  sanctity  of  the  rights  guaranteed  by 'it,  none 
will  question.  These  are  concessa  on  all  sides.  The  objection  above 
referred  to  admits  of  the  most  satisfactory  refutation.  This  may 
be  found  in  the  following  positions,  familiar  in  this  and  in  most 
other  governments,  viz. :  That  the  government,  as  a  general  rule, 
claims  an  exemption  from  being  sued  in  its  own  courts.  That  al- 
though, as  being  charged  with  the  administration  of  the  laws,  it  will 

money  has  been  paid  to  the  collector,  or  to  the  person  acting  as  such,  than 
the  law  requires  should  have  been  paid,  it  shall  be  his  duty  to  draw  his  war- 
rant upon  the  Treasurer  in  favor  of  the  person  or  persons  entitled  to  the  over- 
payment, directing  the  said  Treasurer  to  refund  the  same  out  of  any  money 
in  the  treasury  not  otherwise  appropriated." 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAflES   OR  MONEY.  321 

resort  to   those  courts  as  means  of   securing  this  great  end,   it   will 
not  permit  itself  to  be  impleaded  therein,  save  in  instances   forming 
conceded  and  express  exceptions.     Secondly,  in  the  doctrine  so  often 
ruled  in  this  court  that  the  judicial  power  of  the  United  States,  al- 
though it  has  its  origin  in  the  Constitution,  is  (except  in  enumerated 
instances,  applicable  exclusively  to  this  court)   dependent  for  its  dis- 
tribution and  organization,   and    for  the  modes   of   its   exercise,    en- 
tirely upon  the  action  of  Congress,  who  possess  the   sole  power  of 
creating  the  tribunals  (inferior  to  the  Supreme  Court)  for  the  exer- 
cise of  the  judicial  power,  and  of   investing  them  with  jurisdiction 
either  limited,  concurrent,  or  exclusive,  and  of  withholding  jurisdic- 
I     tion  from  them  in  the  exact  degrees  and  character  which  to  Congress 
!     may  seem  proper  for  the  public  good.     To  deny  this  position  would 
;     be  to  elevate  the  judicial  over  the  legislative  branch  of  the  govern- 
j     ment,  and  to  give  to  the  former  powers  limited  by  its  own  discre- 
tion merely.     It  follows,  then,  that  the  courts  created  by  statute  must 
look   to   the   statute    as   the   warrant    for   their   authority;     certainly 
i    they  cannot  go  beyond  the  statute,  and  assert  an  authority  with  which 
j    they  may  not  be  invested  by  it,  or  which  may  be  clearly  denied  to  them. 
I    This  argument  is  in  no  wise  impaired  by  admitting  that  the  judicial 
I    power  shall  extend  to   all  cases  arising  under  the   Constitution   and 
laws  of   the  United   States.     Perfectly  consistent   with   such  an   ad- 
mission is  the  truth  that  the  organization  of  the  judicial  power,  the 
definition  and  distribution  of  the  subjects  of  jurisdiction  in  the  fed- 
eral  tribunals,   and   the   modes   of   their   action   and   authority,    have 
been,  and  of  right  must  be,  the  work  of  the  legislature.     The  exist- 
ence of  the  judicial  act  itself,  with  its  several  supplements,  furnishes 
proof  unanswerable  on  this  point.     The  courts  of  the  United  States 
are  all  limited  in  their  nature  and  constitution,  and  have  not  the  pow- 
ers  inherent   in   courts    existing  by   prescription   or   by   the   common 
law.     *     *     * 

We  have  thus  stated,  and  will  here  recapitulate,  the  principles  on 
which  the  action  for  money  had  and  received  may  be  maintained. 
They  are  these :  First.  Whenever  the  defendant  has  received  money 
j  which  is  the  property  of  the  plaintiff,  and  which  the  defendant  is 
,  obliged,  by  the  ties  of  natural  justice  and  equity,  to  refund.  Sec- 
!  ondly.  In  the  case  of  an  agent,  where  such  agent  is  not  notoriously 
i  the  mere  carrier  or  instrument  for  transferring  the  fund,  but  has 
ji  the  power  of  retaining,  and  before  he  has  paid  over  has  received  no- 
I  tice  of  the  plaintiff's  claim  and  a  warning  not  to  part  with  the  fund. 
I  Thirdly.  Where  there  exists  a  privity  between  the  plaintiff'  and  the 
j  defendant.  Let  the  case  before  us  be  brought  to  the  test  of  these 
j  rules. 

I  The  second  section  of  the  act  of  Congress  declares,  first,  that  from 
\  its  passage  all  money  paid  to  any  collector  of  the  customs  for  unas- 
I  certained  duties,  or  duties  paid  under  protest  against  the  rate  or 
I  Fk.Adm.Law— 21 


322  RELIEF   AGAINST  ADMIXISTUATIVE   ACTION.  (Part    2 

amount  of  duties  charged,  shall  be  placed  to  the  credit  of  the  Treas- 
urer, to  be  kept  and  applied  as  all  other  money  paid  for  duties  re- 
quired by  law ;  secondly,  that  they  shall  not  be  held  by  the  collector 
to  await  any  ascertainment  of  duties,  or  the  result  of  any  litigation 
concerning  the  rate  or  amount  of  duty  legally  chargeable  or  collect- 
ible; and,  thirdly,  that  in  all  cases  of  dispute  as  to  the  rate  of  du- 
ties, application  shall  be  made  to  the  Secretary  of  the  Treasury,  who 
shall  direct  the  repayment  of  any  money  improperly  charged.  This 
section,  as  a  part  of  the  public  law,  must  be  taken  as  notice  to  all 
revenue  officers,  and  to  all  importers  and  others  dealing  with  those 
officers  in  the  line  of  their  duty.  There  is  nothing  obscure  or  equivo- 
cal in  this  law.  It  declares  to  every  one  subject  to  the  payment  of 
duties  the  disposition  which  shall  be  made  of  all  payments  in  future 
to  collectors ;  tells  them  those  officers  shall  have  no  discretion  over 
money  received  by  them,  and  especially  that  they  shall  never  retain 
it  to  await  the  result  of  any  contest  concerning  the  right  to  it ;  and 
that  quoad  this  money  the  statute  has  converted  those  officers  into 
mere  instruments  for  its  transfer  to  the  treasury. 

With  full  knowledge  thus  imparted  by  the  law,  can  it  be  correctly 
understood  that  the  party  making  payment  can,  ex  aequo  et  bono, 
recover  against  the  officer  for  acting  in  literal  conformity  with  the 
law,  converting  thereby  the  performance  of  his  duty  into  an  of- 
fense, or  that  upon  principles  of  equity  and  good  conscience  an 
obligation  and  a  promise  to  refund  shall  be  implied  against  the  ex- 
press mandate  of  the  law?  Such  a  presumption  appears  to  us  to  be 
subversive  of  every  rule  of  right.  The  more  correct  inference  seems 
to  be  that  payment  under  such  circumstances  must,  ex  aequo  et  bono, 
nay,  ex  necessitate,  and  in  despite  of  objection  made  at  the  time, 
be  taken  as  being  made  in  conformity  with  the  mandate  of  the  law 
and  the  duty  of  the  officer,  which  exclude  not  only  any  implied 
promise  of  repayment  by  the  officer,  but  would  render  void  an  ex- 
press promise  by  him,  founded  upon  a  violation  both  of  the  law  and 
of  his  duty.  The  claimant  had  his  option  to  refuse  payment.  The 
detention  of  the  goods  for  the  adjustment  of  duties  being  an  incident 
of  probable  occurrence,  to  avoid  this  it  could  not  be  permitted  to  ef- 
fect the  abrogation  of  a  public  law,  or  a  system  of  public  policy  es- 
sentially connected  with  the  general  action  of  the  government.  The 
claimant,  moreover,  was  not  without  other  modes  of  redress,  had  he 
chosen  to  adopt  them.  He  might  have  asserted  his  right  to  the 
possession  of  the  goods,  or  his  exemption  from  the  duties  demanded, 
either  by  replevin,  or  in  an  action  of  detinue,  or  perhaps  by  an  action 
of  trover,  upon  his  tendering  the  amount  of  duties  admitted  by  him 
to  be  legally  due. 

The  legitimate  inquiry  before  this  court  is  not  whether  all  right  of 
action  has  been  taken  away  from  the  party,  and  the  court  responds 
to  no  such  inquiry.  The  question  presented  for  decision,  and  the 
only   question   decided,   is   whether,    under   the   notice   given   by   the 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  323 

Statute  of  1839,  payments  made  in  despite  of  that  notice,  thoug-h  with 
a  protest   against  their  supposed  illegaUty,  can  constitute   a  ground 
for  that  imphed  obHgation  to  refund,  and  for  that  promise  inferred 
by  the  law  from  such  obHgation,  which   are  inseparable   from,  and 
indeed  are  the  only  foundation  of,  a  right  of  recovery  in  this  par- 
j  ticular  form  of  action.     And  here  is  presented  the  answer  to  the  as- 
sertion that  by  the  act  of  1839,  or  by  the  construction  given  to  it  by 
i   this  court,  the  party  is  debarred  all  access  to  the  courts  of  justice, 
I  and  left  entirely  at  the  mercy  of  an  executive  officer.     Neither  have 
1  Congress  nor  this  court  furnished  the  slightest  ground  for  the  above 

assertion.     *     *     * 
I       Mr.   Justice    Story   (dissenting).     *     *     *     An   action   for   money 
!  had  and   received  being    [then]    the  known   and   appropriate  remedy 
of  the  common  law,  applied  to  cases  of  this  sort,  to  protect  the  sub- 
.  ject  from  illegal  taxation,  and  duties  levied  by  public  officers,  what 
'  ground  is  there  to  suppose  that  Congress  could  intend  to  take  away 
!  so  important  and  valuable  a  remedy,  and  leave  our   citizens  utterly 
i  without   any   adequate    protection?     It   is   said   that   circuitously   an- 
1  other  remedy  may  be  found.     The  answer  is  that,  if  Congress  have 
I  taken  away  the  direct  remedy,  the  circuitous  remedy  must  be  equally 
I  barred.     But  in  point  of  fact  no  other  judicial  remedy  does  exist  or 
;  can  be  applied.     If  the  collector  is  not  responsible  to  pay  back  the 
:  money,  nobody  is.     The  government  itself  is  not  suable  at  all ;    and 
i  certainly  there  is  no  pretense  to  say  that  the  Secretary  of  the  Treas- 
j  ury  is  suable  therefor.     Where  then  is  the  remedy  which  is  supposed 
to  exist?    -It  is   an  appeal   to  the  Secretary  of  the  Treasury   for  a 
I  return  of  the  money,  if  in  his  opinion  it  ought  to  be  returned,  and 
'not  otherwise.     No  court,  no  jury,  nay,  not  even  the  ordinary  rules 
I  of  evidence,  are  to  pass  between  that  officer  and  the  injured  claim- 
j  ant,  to  try  his  rights  or  to  secure  him  adequate  redress. 
I     Assuming  that  the  Secretary  of  the  Treasury  will  always  be  dis- 
1  posed  to  do  what  he  deems  to  be  right  in  the  exercise  of  his  dis- 
I  cretion,  and  that  he  possesses  all  the  qualifications  requisite  to  per- 
I  form  this  duty,  among  the  other  complicated  duties  of  his  office — a 
presumption   which  I   am  in  no   manner   disposed   to   question — stil] 
,it  removes  not  a  single  objection.     It  is,  after  all,  a  substitution  of 
(executive  authority  and  discretion  for  judicial  remedies.     Nor  should 
iit  be  disguised  that,  upon  so  complicated  a  subject  as  the  nature  and 
'character    of    articles    made    subject    to    duties,    grave    controversies 
J  must  always  exist  (as  they  have  always  hitherto  existed)  as  to  the 
category  within  which  particular  fabrics  and  articles  are  to  be  classed. 
I  The  line  of  discrimination  between   fabrics  and  articles  approaching- 
jnear  to  each  other  in  quality,  or  component  materials,  or  commercial 
;denominations,  is   often  very   nice   and  difficult,   and   sometimes   ex- 
ceedingly obscure.     It  is  the  very  case,  therefore,  which  is  fit  for  ju- 
jdicial  inquiry  and  decision,  and  falls  within  the  reach  of  that  branch 
;of  the  judicial  power  given  by  the  Constitution  where  it  is  declared 


324  RELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part   3 

"that  the  judicial  power  shall  extend  to  all  cases  in  law  and  equity 
arising  under  this  Constitution,  the  laws  of  the  United  States,  and 
treaties,"  etc.  If  then  the  judicial  power  is  to  extend  to  all  cases 
arising-  under  the  laws  of  the  United  States,  upon  what  ground  are 
we  to  say  that  cases  of  this  sort,  which  are  eminently  "cases  arising 
under  the  laws,"  and  of  a  judicial  nature,  are  to  be  excluded  from 
judicial  cognizance,  and  lodged  with  an  executive  functionary? 

Besides,  we  all  know  that,  in  all  revenue  cases,  it  is  the  constant 
practice  of  the  Secretary  of  the  Treasury  to  give  written  instructions 
to  the  various  collectors  of  the  customs  as  to  what  duties  are  to 
be  collected  under  particular  revenue  laws,  and  what,  in  his  judg- 
ment, is  the  proper  interpretation  of  those  laws.  I  will  venture  to 
assert  that,  in  nineteen  cases  out  of  twenty  of  doubtful  interpretation 
of  any  such  laws,  the  collector  never  acts  without  the  express  in- 
structions of  the  Secretary  of  the  Treasury.  So  that  in  most,  if  not 
in  all,  cases  where  a  controversy  arises,  the  Secretary  of  the  Treas- 
ury has  already  pronounced  his  own  judgment.  Of  what  use  then, 
practically  speaking,  is  the  appeal  to  him,  since  he  has  already  given 
his  decision?  Further,  it  is  well  known,  and  the  annals  of  this  court 
as  well  as  those  of  the  other  courts  of  the  United  States  establish 
in  the  fullest  manner,  that  the  interpretations  so  given  by  the  Secre- 
tary of  the  Treasury  have,  in  many  instances,  differed  widely  from 
those  of  the  courts.  The  Constitution  looks  to  the  courts  as  the 
final  interpreters  of  the  laws.  Yet  the  opinion  maintained  by  my 
Brethren  does,  in  effect,  vest  such  interpretation  exclusively  in  that 
officer. 

These  considerations  have  led  me  to  the  conclusion  that  it  never 
could  be  the  intention  of  Congress  to  pass  any  statute  by  which 
the  courts  of  the  United  States,  as  well  as  the  state  courts,  should 
be  excluded  from  all  judicial  power  in  the  interpretation  of  the 
revenue  laws,  and  that  it  should  be  exclusively  confided  to  an  execu- 
tive functionary  finally  to  interpret  and  execute  them — a  power 
which  must  press  severely  upon  the  citizens,  however  discreetly  ex- 
ercised, and  which  deeply  involves  their  constitutional  rights,  priv- 
ileges, and  liberties.  The  same  considerations  force  me,  in  all  cases 
of  doubtful  or  ambiguous  language  admitting  of  different  interpreta- 
tions, to  cling  to  that  which  should  least  trench  upon  those  rights, 
privileges,  and  liberties,  and  a  fortiori  to  adopt  that  which  would 
be  in  general  harmony  with  our  whole  system  of  government.  ' 

And  this  leads  me  to  say  that,  after  the  most  careful  examination 
of  the  second  section  of  the  act  of  1839,  c.  83,  I  have  not  been  able 
to  find  any  ground  to  presume  that  Congress  ever  contemplated  any- 
thing contained  in  that  section  to  be  a  bar  to  the  present  action.  I 
look  upon  that  section  as  framed  for  a  very  different  object,  an  ob- 
ject founded  in  sound  policy  and  to  secure  the  public  interest.  It  was 
to  prevent  officers  of  the  customs  from  retaining  (as  the  habit  of 
some  had  been)    large  sums  of  money  in  their  hands  received  for 


i 

1 
1 

I 

Ch.  7)  ACTIONS  TO  RECOVER  DAMAGES   OR  MONEY.  325 

I   duties,  upon  the  pretense  that  they  had  been  paid  under  protest,  and 
j   thus  to  secure  in  the  hands  of  the  officers  a  sufficient  indemnity  for 
I   all  present  as  well  as  future  liabilities  to  the  persons  who  had  paid 
j   them.     By  this  means  large  sums  of  money  were  withheld  from  the 
I  government,  and  there  was  imminent  danger  that  severe  losses  might 
I  thus  be  sustained  from  the  defalcation  of  those  officers,  and  the  pub- 
lic revenue  might  be  thus  appropriated  to  the  personal  business  or 
speculating  concerns  of  the   officers.     If   actions   should   be  brought 
and  judgment  obtained  against  such  officers  for  the  repayment  of  any 
of  such  duties,  it  was  plain  that  the  government  would  be  bound  to 
indemnify  them,  especially  if  they  had  acted  under  instructions  from 
the  Treasury  Department.     On  the  other  hand,  the  government,  being 
in  possession  of  the  money,  would  hold  it  in  the  meantime  as  a  de- 
posit to  await  events,  and  to  refund  the  same  if  in  the  due  admin- 
istration of  the  law  it  was  adjudged  that  it  ought  to  be  refunded. 
Such,  in  my  judgment,  was  the  object  and  the  sole  object  of  the  sec- 
tion, and  it  seems  to  me  in  this  view  to  be  founded  in  a  wise  protect- 
ive policy.^* 

3  4  See  Arnson   v.   Murphy.  109   U.    S.   23S,   3  Sup.   Ct.   1S4.   27  L.  Ed.   920 
(1883):  "The  commou-law  right  of  action  to  recover  bacli  money  illegally  ex- 
\  acted  by  a  collector  of  customs  as  duties  upon  imported  merchandise  rested 
!  upon  the  implied  promise  of  the  collector  to  refund  money  which  he  had  re- 
ceived as  the  agent  of  the  government,  but  which  the  law'had  not  authorized 
j  him  to  exact,  which  had  been  unwillingly  paid,  and  which,  before  payment  to 
I  his  principal,  he  had  been  notified  he  would  be  required  to  repay,  and' involved 
j  a  corresponding  right  on  his  part  to  withhold  from  the  government,  as  an  in- 
i  demnity,  the  fund  in  dispute.     The  manifest  public  inconveniences  resulting 
!  from  this  situation  induced  Congress,  by  Act  March  3.  1839,  c.  82,  5  Stat.  348, 
i  §  2,  to  alter  the  relation  between  these  officers  and  the  United  States  by  re- 
I  quiring  them  peremptorily  to  pay  into  the  treasury  all  moneys  received  by 
I  them  officially,  without  regard  to  claims  for  erroneous  and  illegal  exactions. 
'  It  was  provided,  however,  therein,  that  the  Secretary  of  the  Treasury  himself, 
j  on  being  satisfied  that,  in  any  case  of  duties  paid  under  protest,  more  money 
i  had  been  paid  to  the  collector  than  the  law  required,  should  refund  the  excess 
I  out  of  the  treasury.     The  legal  effect  of  this  enactment,  as  was  held  in  Gary 
i  V.  Curtis,  3  How.  23G,  11  L.  Ed.  5TG,  was  to  take  from  the  claimant  all  right 
I  of  action  against  the  collector,  by  removing  the  ground  on  which  the  implied 
j  promise  rested.     Congress,  being  in  session  at  the  time  that  decision  was  an- 
nounced, passed  the  explanatory  act  of  February  2G,  1845,  which,  by  legisla- 
j  five  construction  of  the  act  of  1839,  restored  to  the  claimant  his  right  of  ac- 
'  tion  against  the  collector,  but  required  the  protest  to  be  made  in  writing  at 
I  the  time  of  payment  of  the  duties  alleged  to  have  been  illegally  exacted,  and 
!  took  from  the  Secretary  of  the  Treasury  the  authority  to  refund  conferred  bv 
;  the  act  of  1839.     5  Stat.  349.  727.     This  act  of  1845  was  in  force,  as  was  de- 
I  cided  in  Barney  v.  AVatson,  92  U.  S.  449,  23  L.  Ed.  730,  until  repealed  by  im- 
plication by  Act  June  30,  1SG4,  13  Stat.  214.     The  fourteenth  section  of  the 
act  last  mentioned  is,  as  already  cited,  in  substance  the  present  section  2931 
of  the  Revised   Statutes,   providing  for   the  appeal   to   the  Secretary  of  the 
,  Treasury,  and  the  sixteenth  section,  being  the  present  section  30121/^,  Rev.  St.. 
!  restores  to  the  Secretary  of  the  Treasury  the  authority  to  refund  moneys  paid 
j  under  protest  and  appeal,  which  he  shall  be  satisfied  were  illegally  exacted, 
i  originally  conferred  upon  him  by  the  act  of  1839.    And  the  provision  of  the  act 
i  of  1845,  which  construed  the  act  of  1839  so  as  to  restore  to  the  claimant  the 
right  of  action,  judicially  declared  in   Gary  v.   Curtis,   supra,   to  have  been 
[taken  away  by  the  latter,  now  appears  as  section  3011  of  the  Revised  Stat- 
utes.   It  was  in  force  when  the  present  action  was  brought,  and  is  as  follows: 
'Any  person  who  shall  have  made  i)ayment  under  protest  and  in  order  to  ol>- 


326  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part    3 


TEAL  V.  FELTON. 

(Supreme  Court  of  United  States,  1851.    12  How.  284,  1.3  L.  Ed.  990.) 

Mr.  Justice  Wayne  delivered  the  opinion  of  the  court."^ 
This  suit  was  brought  in  a  justice's  court  to  recover  from  the 
plaintifif  in  error  the  value  of  a  newspaper,  received  by  him  as  post- 
master at  Syracuse,  which  he  refused  to  deliver  to  the  defendant 
in  error  to  whom  it  was  addressed.  The  plaintiff  in  error  had  charged 
the  newspaper  with  letter  postage,  on  account  of  a  letter  or  initial  up- 
on the  wrapper  of  it,  distinct  from  the  direction.  This  the  defendant 
refused  to  pay,  at  the  same  time  tendering  the  lawful  postage  of  a 
newspaper.  The  postmaster  would  not  receive  it,  and  retained  the 
paper  against  the  will  of  the  defendant.  Upon  that  demand  and 
refusal  the  suit  was  brought.  The  action  was  trover  and  the  gen- 
eral issue  was  pleaded.  In  the  course  of  the  trial,  when  the  defend- 
ant in  error,  who  was  plaintiff  in  the  suit  below,  was  introducing 
testimony  in  support  of  his  case,  the  defendant  objected  to  a  fur- 
ther examination  of  the  case  by  witnesses,  upon  the  ground  that  the 
court  had  not  jurisdiction  of  the  case.  The  objection  having  been 
overruled,  the  trial  of  the  case  was  continued ;  and  after  the  plain- 
tiff had  proved  that  he  demanded  from  the  defendant  the  newspaper, 
tendering  the  lawful  postage,  and  that  the  postmaster  refused  to 
deliver  it  to  him,  he  rested  his  case.     *     *     * 

From  the  evidence  in  this  case,  we  do  not  think  that  the  initial 
or  letter  upon  the  wrapper  of  the  newspaper  in  this  case,  subjected  it, 
either  under  the  thirteenth  or  thirtieth  section  of  the  act  of  1825, 
to  letter  postage.  *  *  *  This  was  not  a  case  in  which  judgment 
could  be  used  to  determine  any  fact,  except  by  some  other  evidence 
than  the  letter  itself.  Nor  was  it  one  calling  for  discretion  in  the 
legal  acceptation  of  that  term  in  respect  to  officers  who  are  called 
upon  to  discharge  public  duties.  What  was  done  by  the  postmaster 
was  a  mere  act  of  his  own,  and  ministerial,  as  that  is  understood  to 
be,  distinct  from  judicial.  It  could  not  have  been  the  intention  of 
Congress  to  put  it  in  the  power  of  postmasters,  upon  a  mere  sus- 
picion raised  by  a  single  letter  or  initial,  to  arrest  the  transmission 
of  newspapers  from  the  presses  issuing  them,  or  when  they  were 
mailed  by  private  hands. 

tain  possession  of  merchandise  imported  for  him,  to  any  collector  or  person 
acting  as  collector  of  any  money  as  duties,  when  such  amount  of  duties  was 
not,  or  was  not  wholly,  authorized  by  law,  may  maintain  an  action  in  the 
nature  of  an  action  at  law,  which  shall  be  triable  by  jury,  to  ascertain  the 
validity  of  such  demand  and  payment  of  duties,  and  to  recover  back  any  ex- 
cess so  paid.  But  no  recovery  shall  be  allowed  in  such  action  unless  a  protest 
and  appeal  shall  have  been  taken  as  prescribed  in  section  twenty-nine  hundred 
and  thirty-one.' " 

As  to  further  history,  see  De  Lima  v.  Bidwell,  182  U.  S.  1,  174-180,  21 
Sup.  Ct.  743,  45  L.  Ed.  1041  (1896),  post,  p.  561,  and  Act  June  10,  1800. 

s  5  Only  a  portion  of  the  opinion  of  Wayne,  J.,  is  printed. 


Ch.  7)  ACTIONS   TO   RECOVKR   DAMAGES   OR  MONEY.  327 

This  view  of  the  law  disposes  also  of  that  point  in  the  argument, 
claiming  for  the  postmaster  an  exemption  from  the  suit  of  the  plain- 
tiff, upon  the  ground  that  he  was  called  upon,  in  the  act  which  he 
did,  to  exercise  discretion  and  judgment.  In  Kendall  v.  Stokes,  3 
How.  97,  98,  11  L.  Ed.  506,  will  be  found  this  court's  exposition  upon 
that  subject,  with  the  leading  authorities  in  support  of  it.  The  dif- 
ference between  the  two  must  at  all  times  be  determined  by  the  law 
under  which  an  officer  is  called  upon  to  act,  and  by  the  character  of 
the  act.  It  is  the  law  which  gives  the  justification,  and  nothing  less 
than  the  law  can  give  irresponsibility  to  the  officer,  although  he  may 
be  acting  in  good  faith  under  the  instructions  of  his  superior  of  the 
department  to  which  he  belongs.  Here  the  instructions  exceed  the 
law,  and  marks  and  signs  of  themselves,  without  some  knowledge  of 
their  meaning,  and  the  intention  in  the  use  of  them,  are,  as  we  have 
said,  neither  memoranda  nor  writings.  Tracy  v.  Swartwout,  10  Pet. 
80,  9  L.  Ed.  354. 

But  it  is  said  that  the  courts  of  New  York  had  not  jurisdiction  to 
try  the  case.  The  objection  may  be  better  answered  by  reference  to 
the  laws  of  the  United  States,  in  respect  to  the  service  to  be  ren- 
dered in  the  transmission  of  letters  and  newspapers  by  mail,  and  by 
the  Constitution  of  the  United  States,  than  it  can  by  any  general 
reasoning  upon  the  concurrent  civil  jurisdiction  of  the  courts  of 
the  United  States  and  the  courts  of  the  states,  or  concerning  the  ex- 
clusive jurisdiction  given  by  the  Constitution  to  the  former. 

The  United  States  undertakes,  at  fixed  rates  of  postage,  to  convey 
letters  and  newspapers  for  those  to  whom  they  are  directed,  and 
the  postage  may  be  prepaid  by  the  sender,  or  be  paid  when  either 
reach  their  destination,  by  the  person  to  whom  they  are  addressed. 
When  tendered  by  the  latter  or  by  his  agent,  he  has  the  right  to  the 
immediate  possession  of  them,  though  he  has  not  had  before  the  actual 
possession.  If  then  they  be  wrongfully  withheld  for  a  charge  of  un- 
lawful postage,  it  is  a  conversion  for  which  suit  may  be  brought. 
His  right  to  sue  existing,  he  may  sue  in  any  court  having  civil  juris- 
diction of  such  a  case,  unless  for  some  cause  the  suit  brought  is  an 
exception  to  the  general  jurisdiction  of  the  court. 

Now  the  courts  in  New  York  having  jurisdiction  in  trover,  the 
case  in  hand  can  only  be  excepted  from  it  by  such  a  case  as  this 
having  been  made  one  of  exclusive  jurisdiction  in  the  courts  of  the 
United  States,  by  the  Constitution  of  the  United  States.  That 
such  is  not  the  case,  we  cannot  express  our  view  better  than  Mr. 
Justice  Wright  has  done  in  his  opinion  in  this  case  in  the  Court  of 
Appeals.  After  citing  the  second  section  of  the  third  article  of  the 
Constitution,  he  adds :  "This  is  a  mere  grant  of  jurisdiction  to  the 
federal  courts,  and  limits  the  extent  of  their  power,  but  without 
words  of  exclusion  or  any  attempt  to  oust  the  state  courts  of  con- 
current jurisdiction  in  any  of  the  specified  cases  in  which  concurrent 
jurisdiction  existed  prior  to  the  adoption  of  the  Constitution.     The 


328  RELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part    2 

apparent  object  was  not  to  curtail  the  powers  of  the  state  courts,  but 
to  define  the  Hmits  of  those  granted  to  the  federal  judiciary."  ^®  We 
will  add  that  the  legislation  of  Congress,  immediately  after  the  Con- 
stitution was  carried  into  operation,  confirms  the  conclusion  of  the 
learned  judge.  We  find,  in  the  twenty-fifth  section  of  the  judiciary 
act  of  1789,  under  which  this  case  is  before  us,  that  such  a  concur- 
rent jurisdiction  in  the  courts  of  the  states  and  of  the  United  States 
was  contemplated,  for  its  first  provision  is  for  a  review  of  cases  ad- 
judicated in  the  former,  "where  is  drawn  in  question  the  validity  of 
a  treaty  or  statute  of,  or  an  authority  exercised  under,  the  United 
States,  and  the  decision  is  against  their  validity." 

We  are  satisfied  that  there  was  no  error  in  the  decision  of  the 
Court  of  Appeals  in  this  case,  and  the  same  is  affirmed  by  this  court. 

3  6  See  Teall  v.  Felton,  1  N.  Y.  537,  54G,  49  Am.  Dee.  352  (1848):  "But  the 
counsel  for  the  plaintiff  in  error  contends  that  this  is  a  case  which  the  state 
courts  did  not  hold  cognizance  of  at  the  adoption  of  the  federal  Constitution, 
for  the  reason  that  the  Post-Office  Department  not  only  never  in  any,  manner 
or  at  any  time  pertained  to  the  state  or  colony,  but  is  entirely  the  creation 
of  the  national  statute:  that  it  owes  its  existence  exclusively  to  the  Constitu- 
tion and  national  legislature ;  and  hence  that  the  federal  judiciary  has  ex- 
clusive jurisdiction  in  all  matters  growing  out  of  or  pertaining  to  it.  That 
the  post  office  is  a  federal  institution  no  one  will  deny ;  but  it  is  difficult  to 
perceive  how  the  premises  of  the  counsel  sustain  the  conclusion  at  which  he 
arrives.  The  same  reason  would  apply  with  equal  force  in  case  of  a  suit  being 
brought  against  a  collector  of  the  customs.  The  present  action  is  one  coeval 
with  the  common  law,  to  enforce  a  right  to  property,  alleged  to  have  been 
wrongfully  converted  by  the  defendant.  This  remedy  for  a  tortious  conversion 
has  always  been  complete  in  the  state  courts.  It  does  not  follow  that,  because 
the  defendant  may  have  been  acting  under  a  law  of  Congress  in  withholding 
the  newspaper,  and  consequently  may  defend  himself  against  the  alleged  con- 
version, that  jurisdiction  of  the  subject-matter  is  exclusively  given  or  acquired 
by  the  federal  courts  under  such  law.  The  plaintiff  is  not  seeking  redress 
under  the  post-office  laws,  or  attempting  to  enforce  a  penalty  specifically  im- 
posed by  them  on  the  postmaster  for  a  fraudulent  act  pertaining  to  his  official 
duty.  She  simply  seelis  to  recover  in  an  appropriate  common-law  tribunal, 
competent  to  afford  a  remedy,  and  In  a  form  of  action  more  ancient  than  the 
federal  Constitution  or  laws,  the  value  of  her  property.  If  the  defendant  can 
maintain  that  by  the  post-office  laws,  or  any  constitutional  act  of  the  national 
legislature,  there  was  no  legal  conversion,  his  defense  will  be  complete.  But 
it  is  an  incorrect  conclusion  that  because  a  law  of  Congress  prescribes  the 
duties  of  an  officer  of  the  federal  government,  and  in  a  proper  case  he  may 
thereunder  defend  his  acts,  for  such  reason  the  state  courts  are  ousted  of 
jurisdiction.  Upon  the  whole.  I  have  no  doubt  that  the  justice  had  jurisdic- 
tion in  the  present  case ;  and,  whilst  asserting  this  jurisdiction,  I  would  not 
be  understood  as  inclined  to  throw  the  least  obstacle  in  the  way  of  a  successful 
operation  of  the  general  government,  or  to  encourage  the  exercise  of  state 
power  having  that  tendency." 


Ch.  7)  ACTIONS  TO  RECOVER  DAMAGES  OR  MONEY.  329 

SECTION  36.— SAME— LIABILITY  ON  OFFICIAL  BOND 


UNITED  STATES  v.  GRISWOLD  et  al. 

(Supreme  Court  of  Arizona,  1904.    8  Ariz.  543,  76  Pac.  50G.) 

Action  by  the  United  States  of  America  against  Albert  J.  Griswold 
and  others.  From  an  order  sustaining  a  demurrer  to  the  complaints, 
plaintiff  appeals.     Reversed. 

Sloan,  J.  The  United  States  brought  suit  in  the  court  below 
against  Albert  J.  Griswold,  postmaster  at  Nogales,  Ariz.,  and  L.  W. 
Mix,  Edward  Titcomb,  Theo.  Gebler,  and  Fred.  Herrera,  sureties 
upon  the  official  bond  of  said  Griswold  as  postmaster  aforesaid,  to 
recover  the  sum  of  $1,863,  alleged  to  have  been  lost  from  the  mails 
after  the  same  had  been  registered  and  deposited  in  the  post  of- 
fice at  Nogales  by  P.  Sandoval  &  Co.  It  was  alleged  in  the  com- 
plaint that  the  registered  package  containing  this  money  was  stolen 
from  the  post  office  by  reason  of  the  negligence  of  the  postmaster. 
The  defendants  in  the  action  demurred  to  the  complaint  upon  the 
ground  that  the  facts  therein  stated  did  not  constitute  a  cause  of  ac- 
tion in  favor  of  plaintiff  and  against  the  defendants.  The  demurrer 
was  sustained  by  the  trial  court,  and  from  this  order  and  ruling  of 
the  court  the  United  States  has  appealed. 

The  first  question  presented  is :  Does  the  loss  of  the  registered 
package,  occasioned  by  the  negligence  of  the  postmaster,  amount  to 
a  breach  of  the  bond  given  by  such  postmaster,  under  section  3834, 
Rev.  St.  U.  S.  (U.  S.  Comp.  St.  1901,  p.  2610)  ?  This  section  pro- 
vides that  "every  postmaster,  before  entering  upon  the  duties  of  his 
office,  shall  give  bond,  with  good  and  approved  security,  and  in  such 
penalty  as  the  Postmaster  General  shall  deem  sufficient,  conditioned 
for  the  faith'ful  discharge  of  all  duties  and  trusts  imposed  on  him  ei- 
ther by  law  or  the  rules  and  regulations  of  the  department."  The 
bond  in  this  instance,  given  by  Griswold,  contained  the  condition  re- 
quired by  said  section,  being  in  all  respects  as  required  by  law  and 
the  rules  and  regulations  of  the  Post-Office  Department  having  the 
effect  of  law.  Section  3926,  Rev.  St.  U.  S.  (U.  S.  Comp.  St.  1901, 
p.  2685),  authorizes  the  Postmaster  General  to  establish  a  uniform 
system  of  registration  conditioned  that  the  Post-Office  Department, 
or  its  revenue,  should  not  be  liable  for  the  loss  of  any  mail  matter 
on  account  of  its  having  been  registered.  It  is  a  part  of  the  duty  of 
the  postmaster  to  safely  keep  and  to  transmit  the  mails,  including 
registered  packages,  which  may  be  given  into  his  hands  as  such  post- 
master. His  oath  of  office  requires  him  to  faithfully  perform  the 
duties  of  his  office. 


330  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

It  is  a  general  proposition  that  a  public  officer,  having-  ministerial 
duties  to  perform,  is  liable  for  any  injury  occasioned  by  him  in  con- 
sequence of  his  failure  to  perform  his  official  duty.  Raynsford  v. 
Phelps,  43  Mich.  344,  5  N.  W.  403,  38  Am.  Rep.  189.  Thus  it  has 
been  held  that  a  postmaster  is  liable  in  damage  for  conversion  of 
mail  matter  at  the  suit  of  the  person  injured.  Teal  v.  Felton,  13  How. 
284,  13  L.  Ed.  990.  It  has  also  been  held  that  a  postmaster  is  liable 
for  the  loss  of  a  letter  containing  money,  occasioned  by  his  neg- 
ligence, at  the  suit  of  the  sender.  Danforth  v.  Grant,  14  Vt.  283, 
39  Am.  Dec.  224.  If  a  postmaster  can  be  held  responsible  in  dam- 
ages for  loss  of  mail  matter  occasioned  by  his  negligence,  it  must  be 
for  the  reason  that  he  has  been  derelict  in  his  duty  as  such  officer. 
Such  a  failure,  under  the  condition  of  his  official  bond  that  he  will 
"faithfully  discharge  the  duties  of  his  office,"  amounts  to  a  breach 
of  the  bond;  and  in  such  a  case  the  liability  of  the  principal  is  the 
measure  of  the  liability  of  the  surety.  All  bonds  given  by  govern- 
ment officials  are  to  be  construed  as  though  executed  and  to  be  per- 
formed at  Washington,  and  hence  are  to  be  construed  according  to 
the  rules  of  the  common  law,  except  where  these  rules  have  been 
changed  or  modified  by  statute.  Cox  v.  United  States,  31  U.  S. 
172,  8  L.  Ed.  359. 

At  common  law  suit  upon  an  official  bond  must  be  brought  and 
a  recovery  had  in  the  name  of  the  obligee.  There  is  no  congressional 
statute  modifying  the  common-law  limiting  the  liability  of  sureties  to 
suits  brought  by  or  in  the  name  of  the  United  States,  as  there  is  in 
the  case  of  bonds  given  by  United  States  marshals.  In  the  latter 
case  there  is  statutory  authority  authorizing  any  person  to  bring,  in 
his  own  name  and  for  his  sole  use,  suit  on  the  marshal's  bond  for  a 
breach  of  its  conditions.  Section  784,  Rev.  St.  U.  S.  (U.  S.  Comp. 
St.  1901,  p.  607).  It  follows,  therefore,  that  P.  Sandoval  &  Co. 
could  not  maintain  a  suit  on  the  postmaster's  bond  in  their  own  name 
to  recover  for  the  loss  of  the  registered  package. 

Can  the  United  States  maintain  such  a  suit?  It  has  been  held 
that  a  bailee  may  sue  and  recover  in  his  own  name  damages  caused 
to  the  subject  of  the  bailment  through  the  negligence  Ol  a  third  per- 
son. In  such  case  the  measure  of  damages  is  not  limited  to  the 
bailee's  special  interest  in  the  property,  but  he  may  recover  for  all 
damages,  holding  the  amount  so  recovered  in  excess  of  his  own  in- 
terest in  trust  for  his  bailor.  Woodman  v.  Nottingham,  49  N.  H. 
387,  6  Am.  Rep.  526;  McGill  v.  Monette,  37  Ala.  49;  Rindge  v. 
Coleraine,  11  Gray,  159.  The  United  States,  in  this  instance,  was 
the  bailee  and  intrusted  with  the  safe-keeping  of  the  registered  pack- 
age deposited  by  P.  Sandoval  &  Co.  Under  section  3926,  Rev.  St. 
U.  S.  (U.  S.  Comp.  St.  1901,  p.  2685),  the  sender  of  first-class  reg- 
istered matter  is  entitled  to  be  indemnified  out  of  the  postal  revenues 
for  loss  in  the  mails  to  the  extent  of  $10  for  any  one  registered  pack- 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY,  331 

age.  or  the  actual  value  thereof  when  that  is  less  than  $10.  The 
government,  in  accepting  a  registered  package,  becomes  not  only  the 
bailee  of  the  sender,  but  assumes  a  liability  to  its  bailor  by  reason  of 
the  bailment. 

Even  should  we  therefore  construe  the  liability  of  the  sureties 
in  its  strictest  sense,  the  government,  as  a  bailee,  would  have  a  right 
to  recover  to  the  extent  of  its  special  interest,  which  would  be  meas- 
ured by  the  extent  of  its  liability  to  the  sender  of  the  package.  If 
the  government,  therefore,  has  a  right  to  sue  to  recover  the  loss  it 
sustains  as  bailee,  under  the  general  doctrine  above  stated,  its  recov- 
ery cannot  be  confined  to  such  special  interest,  but  may  cover  the  en- 
tire loss  sustained  both  by  it  and  its  bailor.  Not  only  so,  but  we 
think  it  is  the  duty  of  the  United  States  to  protect  the  public  against 
its  own  officers  even  to  the  extent  of  enforcing  every  legal  right 
which  it  possesses,  whether  criminal  or  civil.  To  hold  that  the 
United  States  may  not  maintain  an  action  upon  the  bond  of  the  post- 
master for  the  recovery  of  the  entire  loss  sustained  by  the  negli- 
gence of  the  postmaster  because  it  was  not  obligated  to  return  or 
make  good  to  P.  Sandoval  &  Co.  an  amount  exceeding  $10,  would 
be  to  deny  to  the  latter  any  redress  unless  the  postmaster  be  personal- 
ly responsible  to  the  extent  of  such  loss. 

We  are  convinced  that  in  a  case  like  the  one  at  bar  the  United 
States  may  sue  for  the  benefit  of  the  injured  party  and  recover  from 
the  sureties  upon  the  official  bond  of  the  postmaster  the  full  amount 
of  such  loss,  and  that  it  is  the  clear  duty  of  the  government  to  bring 
such  action.  At  common  law  such  suits  were  usually  brought  "for 
the  use  of"  or  "at  the  relation  of"  the  injured  person.  It  is  not 
essential,  however,  that  there  be  any  formal  declaration  of  such  use ; 
its  only  purpose  being  to  protect  the  interest  of  the  beneficiary  against 
the  nominal  plaintiff.  Tedrick  v.  Wells,  152  111.  317,  38  N.  E."  635  ; 
Clay  Fire  &  Marine  Ins.  Co.  v.  Huron  Salt  &  Lumber  Mig.  Co.,  31 
IMich.  346.  In  the  complaint  the  facts  sufficiently  show  that  the 
United  States  is  suing  for  the  amount  of  the  loss  suffered  by  P. 
Sandoval  &  Co.  and  for  their  benefit,  and  it  will  not  be  assumed  that 
the  government  will  appropriate  the  amount  recovered  to  its  own 
use,  but  it  will  be  assumed  that  it  will  perform  its  duty  by  paying  to 
P.  Sandoval  &  Co.  the  amount  so  recovered. 

We  hold  that  the  complaint  stated  a  cause  of  action,  and  the  judg- 
ment will  therefore  be  reversed,  and  the  cause  remanded  for  further 
proceedings.^^ 

Kent  C.  J.,  and  Doan,  J.,  concur. 

3  7  See  Howard  v.  United  States,  184  U.  S.  676,  687,  690,  22  Sup.  Ct.  543,  46 
L.  Ed.  754  (1902). 


332  BELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part    2 


SECTION  37.— SAME— ACTIONS  AGAINST  SUBORDINATES 


LITTLE  V.  BARREME. 

THE  FLYING  FISH. 

(Supreme  Court  of  United  States,  1804.    2  Crancli.  170,  2  L.  Ed.  243.) 

Appeal  from  the  Circuit  Court  for  the  District  of  Massachusetts. 

Marshall,  C.  J.,  now  deHvered  the  opinion  of  the  court.^^ 

The  Flying  Fish,  a  Danish  vessel,  having  on  board  Danish  and 
neutral  property,  was  captured  on  the  2d  of  December,  1799,  on  a 
■voyage  from  Jeremie  to  St.  Thomas,  by  the  United  States  frigate 
Boston,  commanded  by  Captain  Little,  and  brought  into  the  port  of 
Boston,  where  she  was  libeled  as  an  American  vessel  that  had  vio- 
lated the  nonintercourse  law.  The  judge  before  whom  the  cause 
was  tried  directed  a  restoration  of  the  vessel  and  cargo  as  neutral 
property,  but  refused  to  award  damages  for  the  capture  and  deten- 
tion, because,  in  his  opinion,  there  was  probable  cause  to  suspect  the 
vessel  to  be  American.  On  an  appeal  to  the  Circuit  Court,  this 
sentence  was  reversed,  because  the  Flying  Fish  was  on  a  voyage 
from,  not  to,  a  French  port,  and  was,  therefore,  had  she  even  been 
an  American  vessel,  not  liable  to  capture  on  the  high  seas. 

During  the  hostilities  between  the  LTnited  States  and  France,  an 
act  for  the  suspension  of  all  intercourse  between  the  two  nations 
was  annually  passed.  That  under  which  the  Flying  Fish  was  con- 
demned declared  every  vessel  owned,  hired,  or  employed,  wholly  or 
in  part,  by  an  American,  which  should  be  employed  in  any  traffic  or 
commerce  with  or  for  any  person  resident  within  the  jurisdiction, 
or  under  the  authority,  of  the  French  republic,  to  be  forfeited,  to- 
gether with  her  cargo,  the  one-half  to  accrue  to  the  United  States, 
and  the  other  tO'  any  person  or  persons,  citizens  of  the  United 
States,  who  will  inform  and  prosecute  for  the  same.  The  fifth  sec- 
tion of  this  act  authorizes  the  President  of  the  United  States  to  in- 
struct the  commanders  of  armed  vessels  to  stop  and  examine  any 
ship  or  vessel  of  the  United  States,  on  the  high  seas,  which  there 
may  be  reason  to  suspect  to  be  engaged  in  any  traffic  or  commerce 
contrary  to  the  true  tenor  of  the  act,  and  if  upon  examination  it 
should  appear  that  such  ship  or  vessel  is  bound,  or  sailing  to,  any 
port  or  place  within  the  territory  of  the  French  republic  or  her  de- 
pendencies, it  is  rendered  lawful  to  seize  such  vessel,  and  send  her 
into  the  United  States  for  adjudication. 

It  is  by  no  means  clear,  that  the  President  of  the  United  States, 
whose  high  duty  it  is  to  "take  care  that  the  laws  be  faithfully  e^^e- 

3  8  Tlie  statement  of  facts  is  omitted. 


Ch.  7)  ACTIONS  TO   RECOVER  DAMAGES  OR  MONEY.  333 

cuted."  and  who  is  commander  in  chief  of  the  armies  and  navies  of 
the  United  States,  might  not,  without  any  special  authority  for  that 
purpose,  in  the  then  existing  state  of  things,  have  empowered  the 
officers  commanding  the  armed  vessels  of  the  United  States  to  seize 
and  send  into  port  for  adjudication  American  vessels  w^hich  were 
forfeited  by  being  engaged  in  this  illicit  commerce.  But  when  it  is 
observed  that  the  general  clause  of  the  first  section  of  the  act,  which 
declares  that  "such  vessels  may  be  seized,  and  may  be  prosecuted  in 
any  District  or  Circuit  Court,  which  shall  be  holden  within  or  for 
the  district  where  the  seizure  shall  be  made,"  obviously  contemplates 
a  seizure  w^ithin  the  United  States,  and  that  the  fifth  section  gives  a 
special  authority  to  seize  on  the  high  seas,  and  limits  that  authority 
to  the  seizure  of  vessels  bound,  or  sailing  to,  a  French  port,  the 
I  Legislature  seem  to  have  prescribed  that  the  manner  in  which  this 
'law  shall  be  carried  into  execution  was  to  exclude  a  seizure  of  any 
vessel  not  bound  to  a  French  port.  Of  consequence,  however  strong 
the  circumstances  might  be  which  induced  Captain  Little  to  suspect 
the  Flying  Fish  to  be  an  American  vessel,  they  could  not  excuse  the 
detention  of  her,  since  he  would  not  have  been  authorized  to  detain 
her,  had  she  been  really  American. 

It  was  so  obvious,  that  if  only  vessels  sailing  to  a  French  port 
could  be  seized  on  the  high  seas,  that  the  law  would  be  very  often 
evaded,  that  this  act  of  Congress  appears  to  have  received  a  different 
construction  from  the  executive  of  the  United  States — a  construction 
much  better  calculated  to  give  it  effect.  A  copy  of  this  act  was 
transmitted  by  the  Secretary  of  the  Navy  to  the  captains  of  the  armed 
vessels,  who  were  ordered  to  consider  the  fifth  section  as  a  part  of 
their  instructions.  The  same  letter  contained  the  following  clause : 
"A  proper  discharge  of  the  important  duties  enjoined  on  you,  aris- 
ing out  of  this  act,  will  require  the  exercise  of  a  sound  and  an  im- 
partial judgment.  You  are  not  only  to  do  all  that  in  you  Hes  to 
prevent  all  intercourse,  whether  direct  or  circuitous,  between  the 
ports  of  the  United  States  and  those  of  France  or  her  dependencies, 
where  the  vessels  are  apparently  as  well  as  really  American,  and 
protected  by  American  papers  only,  but  you  are  to  be  vigilant  that 
vessels  or  cargoes,  really  American,  but  covered  by  Danish  or  other 
foreign  papers,  and  boimd  to  or  from  French  ports,  do  not  escape 
you." 

These  orders,  given  by  the  executive,  under  the  construction  of 
the  act  of  Congress  made  by  the  department  to  which  its  execution 
was  assigned,  enjoin  the  seizure  of  American  vessels  sailing  from  a 
French  port.  Is  the  officer  who  obeys  them  liable  for  damages  sus- 
tained by  this  misconstruction  of  the  act,  or  will  his  orders  excuse 
him?  If  his  instructions  afford  him  no  protection,  then  the  law 
must  take  its  course,  and  he  must  pay  such  damages  as  are  legally 
awarded  against  him ;  if  they  excuse  an  act,  not  otherwise  excusable, 
it  would  then  be  necessary  to  inquire  whether  this  is  a  case  in  Avhich 


334  RELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part    2 

the  probable  cause  which  existed  to  induce  a  suspicion  that  the  vessel 
was  American  would  excuse  the  captor  from  damages  when  the 
vessel  appeared  in  fact  to  be  neutral? 

I  confess  the  first  bias  of  my  mind  was  very  strong  in  favor  of 
the  opinion  that,  though  the  instructions  of  the  executive  could  not 
give  a  right,  they  might  yet  excuse  from  damages.  I  was  much  in- 
clined to  think  that  a  distinction  ought  to  be  taken  between  acts  of 
civil  and  those  of  military  officers,  and  between  proceedings  within 
the  body  of  the  country  and  those  on  the  high  seas.  That  implicit 
obedience  which  military  men  usually  pay  to  the  orders  of  their  su- 
periors which  indeed  is  indispensably  necessary  to  every  military 
system,  appeared  to  me  strongly  to  imply  the  principle  that  those 
orders,  if  not  to  perform  a  prohibited  act,  ought  to  justify  the  person 
whose  general  duty  it  is  to  obey  them,  and  who  is  placed  by  the 
laws  of  his  country  in  a  situation  which,  in  general,  requires  that  he 
should  obey  them.  I  was  strongly  inclined  to  think  that  where,  in 
consequence  of  orders  from  the  legitimate  authority,  a  vessel  is 
seized  with  pure  intention,  the  claim  of  the  injured  party  for  dam- 
ages would  be  against  that  government  from  which  the  orders  pro- 
ceeded, and  would  be  a  proper  subject  for  negotiation.  But  I  have 
been  convinced  that  I  was  mistaken,  and  I  have  receded  from  this 
first  opinion.  I  acquiesce  in  that  of  my  Brethren,  which  is  that  the 
I  instructions  cannot  change  the  nature  of  the  transaction,  nor  legalize 
an  act  which,  without  those  instructions,  would  have  been  a  plain 
trespass. ' 

It  becomes,  therefore,  unnecessary  to  inquire  whether  the  prob- 
able cause  afforded  by  the  conduct  of  the  Flying  Fish  to  suspect  her 
of  being  an  American  would  excuse  Captain  Little  from  damages  for 
having  seized  and  sent  her  into  port,  since,  had  she  been  an  Ameri- 
can, the  seizure  would  have  been  unlawful.  Captain  Little,  then, 
H((./  must  be  answerable  in  damages  to  the  owner  of  this  neutral  vessel, 
and  as  the  account  taken  by  order  of  the  Circuit  Court  is  not  ob- 
jectionable on  its  face,  and  has  not  been  excepted  to  by  counsel  be- 
fore the  proper  tribunal,  this  court  can  receive  no  objection  to  it. 

There  appears,  then,  to  be  no  error  in  the  judgment  of  the  Cir- 
cuit Court,  and  it  must  be  affirmed  with  costs.^® 


STETSON  V.  KEMPTON. 

(Supreme  Judicial  Court  of  Massacliusetts,  1816.     13  Mass.  272,  7  Am. 
Dec.  115.) 

Trespass  against  the  defendants,  for  taking  and  carrying  away 
the  plaintiff's  chaise  and  harness,  and  converting  them  to  their  own 
use.     The  plaintiff   had  died  since  the  last  continuance;    and  upon 

39  See  Otis  v.  Bacou,  7  Cranch,  589,  3  L.  Ed.  448  (1813):  Tracv  v.  Swart- 
wout,  10  Pet.  80.  9  L.  Ed.  354  (1836) ;  Hendricks  v.  Gonzalez,  67  Fed.  351,  14 
C.  C.  A.     059  (1895). 


Ch.  7)  ACTIONS   TO   RECOVER  DAMAGES   OR   MONEY.  335 

motion  of  his  administrator,  he  was  admitted  to  prosecute  the  suit, 
the  defendants  opposing.  The  cause  was  submitted  to  the  deter- 
mination of  the  court,  upon  an  agreed  statement  of  facts,  in  sub- 
stance as  fohows : 

The  defendants  were  duly  chosen  and  quahfied  as  assessors  for  the 
town  of  Fairhaven  for  the  year  1814,  and  on  the  Sth  day  of  October 
in  that  year,  in  pursuance  of  the  duties  of  their  office,  assessed  upon 
the  inhabitants  of  said  town  a  tax,  amounting  in  the  whole  to  the  sum 
of  $3,719.73,  of  which  sum  the  plaintifif,  being  a  taxable  inhabitant 
of  the  town,  was  assessed  the  sum  of  $11.91,  for  the  nonpayment 
of  which  tax  his  chaise  and  harness  were  seized  and  sold  by  the 
collector,  to  whom  the  said  assessment  had  been  committed,  and 
who  was  duly  qualified  to  execute  the  duties  of  that  office,  the  sur- 
plus of  the  proceeds  of  the  sale,  over  the  tax  and  legal  charges, 
having  been  paid  to  the  plaintiff. 

Of  the  said  sum  of  $3,719.73,  the  sum  of  $1,200  was,  at  a  legal 
meeting  of  the  inhabitants  of  said  town  holden  on  the  2d  of  August, 
1811,  voted  to  be  raised  "for  the  payment  of  additional  wages  allowed 
the  drafted  and  enlisted  militia  of  said  town,  and  other  expenditures 
of  defense."  At  the  time  when  the  said  sum  of  $1,200  was  so  voted 
to  be  raised,  and  when  the  same  was  assessed  as  aforesaid,  an  open 
war  existed  between  the  United  States  and  Great  Britain.  The 
enemy  were  then  on  the  coast,  and  in  sight  of  said  town;  and  had 
made  an  attempt  to  land,  but  retreated.  The  town  was  greatly  and 
eminently  exposed  to  their  ravages,  who  were  then  laying  waste  and 
destroying  the  dwellings  and  other  property  of  the  people  situated 
on  the  coast;  and  in  the  opinion  of  the  inhabitants  of  the  town,  it 
was  necessary  to  raise  and  expend  the  said  sum  of  money  for  the 
purposes  expressed  in  the  vote  above  recited,  and  for  the  immediate 
protection  and  defense  of  the  inhabitants  of  the  town,  who  voted 
unanimously  to  raise  the  same  for  the  said  purposes,  the  plaintifif 
himself  not  having  been  present  at  said  meeting.  Not  one-half  of 
the  said  $1,200  was  in  'fact  expended  for  the  object  stated  in  the 
said  vote;  and  the  residue,  so  far  as  collected,  has  been  applied  to 
the  legal  and  necessary  expenses  and  uses  of  the  town. 

If  upon  these  facts  the  court  should  be  of  opinion  that  the  plaintifif 
was  entitled  to  recover,  judgment  was  to  be  rendered  for  him,  upon 
a  default  of  the  defendants,  and  his  damages  assessed  by  a  jury; 
otherwise  he  was  to  become  nonsuit  and  the  defendants  recover  their 
costs. 

Parker,  C.  J.*"  [after  stating  the  opinion  of  the  court  that  there 
was  no  lawful  authority  to  raise  the  sum  in  question].  Thus  then 
the  general  question  is  disposed  of;  but  it  is  further  relied  upon  in 
the  defense  that  the  defendants,  being  in  the  assessment  of  taxes 
authorized  by  vote  servants  or  ministerial  officers,  ought  not  to  be  sub- 
ject to  an  action  for  the  mere  execution  of  an  official  duty. 

40  Only  a  portion  of  the  opinion  of  Tarker,  C.  J.,  is  printed. 


336  BELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part   2 

It  is  true  that  generally  executive  officers  are  not  liable  to  actions 
for  the  regular  execution  of  precepts  apparently  lawful,  and  which 
come  from  an  authority  which  has  jurisdiction  over  the  subject. 
])Ut  we  cannot  view  assessors  in  this  light.  They  are  not  compell- 
able to  assess  an  illegal  tax.  They  may  exercise  their  judgment  on 
the  subjects  for  which  the  money  appears  to  be  voted;  and  they 
may  refuse  to  cause  the  collection  to  be  enforced,  if  they  deem  the 
tax  illegal.  If  they  are  not  liable  to  an  action  for  causing  an  arrest, 
or  the  seizure  of  property,  for  the  nonpayment  of  an  illegal  tax, 
it  is  difficult  to  find  any  remedy  for  an  injured  citizen  in  cases  of  this 
nature.  The  constable  or  collector  is  not  answerable,  because  he  acts 
in  obedience  to  a  warrant  under  the  hands  and  seals  of  the  assessors, 
who  have  jurisdiction  over  the  subject,  and  authority  to  assess  a 
tax,  and  to  issue  their  warrant;  and  it  would  be  dangerous  to  vest 
such  officers  with  a  right  to  question  the  legality  of  the  proceedings 
which  precede  the  assessment. 

If  an  action  would  lie  against  the  town,  it  could  only  be  for  the 
money  actually  received  into  the  treasury,  which,  in  most  cases  of 
distress,  would  be  but  a  partial  remedy.  The  assessors  must  then 
be  answerable,  or  there  will  be  a  defect  of  justice.  In  the  cases 
first  cited,  the  action  was  against  the  assessors,  and  no  objection  was 
made  on  that  ground ;  and  it  may  be  also  remarked  that  actions  have 
been  uniformly  sustained  against  assessors,  when  a  sum  has  been 
assessed  which  was  not  within  the  authority  of  the  town  to  raise. 

It  is  further  objected  that,  as  part  of  the  money  composing  this 
tax  was  raised  for  legal  purposes,  the  assessment  must  be  considered 
so  far  legal  as  to  support  the  warrant  issued  by  the  defendants ;  oth- 
erwise they  may  be  held  to  pay  in  damages  for  money  which  law- 
fully belonged  to  the  town.  But  when  a  part  of  a  tax  is  illegal,  all 
the  proceedings  to  collect  it  must  be  void,  as  it  is  impossible  to  sepa- 
rate and  distinguish,  so  that  the  act  should  be  in  part  a  trespass  and 
in  part  innocent.*^  This  point  may  also  be  considered  as  settled  in 
the  two  cases  cited ;  for  in  both  those  cases  the  greater  part  of  the 
sum  assessed  was  for  lawful  purposes.  Whether  the  damages  may 
not  be  diminished  by  the  jury,  in  proportion  to  the  sum  which  shall 
appear  to  be  a  lawful  subject  of  taxation,  may  be  considered  in  the 
inquiry  which  is  yet  to  be  had  by  the  jury,     *     *     *  42 

Defendants  defaulted. 

41  On  this  point,  see  Col  ton  v.  Hancliett,  13  III.  G15  (1852), 

42  See  Rev.  I^ws  Mass.  c.  12,  §  98  (St.  182.3,  c.  138,  §  5)  :  "Assessors  shall 
not  be  responsible  for  the  assessment  of  a  tax  assessed  by  them  in  pursuance 
of  a  vote  for  that  purpose,  certified  to  them  by  the  elerlv  or  other  proper 
officer  of  a  city,  town,  or  fire  district,  except  for  the  want  of  integrity  and 
fidelity  on  their  own  part." 

See  Lincoln  v.  Worcester,  8  Cush.  (Mass.)  55  (1851),  post  p. 359. 


!     Ch.  7)  ACTIONS   TO   RECOVER  DAMAGES   OR  MONEY.  337 

GUPTAIL  et  al.  v.  TEFT. 

(Supreme  Court  of  Illinois,  1S55.     16  111.  303.) 

I        Declaration    in    trespass    qiiare   clausum    fregit,    for   breaking   and 
1    entering  a  certain  close  in  the  town  of  Hanover,  in  said  county  of 
Cook,  situate  on  section  31,  and  breaking  down,  prostrating  and  de- 
I    stroying   300   rods   of   fencing,   and   breaking   the   boards,    rails   and 
I    posts,  and  destroying  the  lumber  whereof  the  same  was  made,  and 
j    trampling  down  the  herbage,  etc.     Damages,  $1,000. 
'       Pleas:    (1)   General  issue.     (2)  The  following  special  pleas: 
I       "And  the  said  defendant,  John  Guptail,  for  further  plea  in  this 
I   behalf,  by  leave,  etc.,  says  plaintiff  actio  non,  because  he  says,  that 
i    the  said  close  in  said  declaration  mentioned,  is  situate  at  and  within 
I    road  district  number  ten  (10),  in  the  town  of  Hanover,  in  the  said 
'    county  of  Cook;    that  the  said  town  was,  at  the  time  when,  etc.,  or- 
!   ganized  under  the  act  of  the  General  Assembly  of  the  state  of  II- 
I   linois,  approved  February  17,  A.  D.  1851,  entitled  'An  act  to  provide 
for  township  organization' ;    that  on  the  10th  day  of  June,  A.  D.  1854, 
Andrew  Spitser,  S.   N.  Campbell,  and  Christophe   Sohle,  were  com- 
missioners of  highways  in  said  town  of  Hanover,  duly  elected  and 
qualified,  and  then  and  there,  by  virtue  of  their  said  office,  and  ac- 
cording to  the  force  of  the  statute  aforesaid,  had  the  care  and  su- 
perintendence of  the  highways  and  bridges  in  said  town,  with  power 
to  lay  out  new  highways,  and  to  regulate  and  alter  pre-existing  high- 
ways in  said  town,   and  cause  the  same  to  be  repaired,   kept  open 
and  free  from  obstructions;    that  on  the  said  10th  day  of  June,  the 
said  defendant  was  overseer  of  highways  in  said  road  district  number 
ten  (10),   in  the   said  town   of  Hanover,   duly   chosen   and   qualified 
as  such;    that  it  then  and  there  became,  and  was,  the  duty  of  this 
defendant,  as  overseer  of  highways,  to  open  new  highways,  and  re- 
move all  obstructions  to  pre-existing  highways,  within  his  said  dis- 
trict, when  thereunto  required  by  the   said  commissioners   of   high- 
ways;   that  on  the  said  10th  day  of  June,  the  said  commissioners  of 
i  highways  made  and  delivered  to  this  defendant  an  order,  in  the  words 
'  and  figures  following,  to  wit: 

j  "  'Hanover,  June  10,  1854. 

I  "  'To  John  Guptail,  Overseer  of  Road  District  No.  10,  Town  of  Han- 
j         over : 

I      "  'Sir :      Complaint    having   been    made    to    the    commissioners    of 

'  highways  in  and   for  the  town  of  Hanover,   Cook  county,  that  the 

I  highway  running  on   the  line  between  the  sections  thirty   (30)    and 

i  thirty-one  (31)  is  obstructed  by  a  fence  owned  by  Jonathan  Teft,  Sr., 

and  he  having  been  legally  notified  to  remove  the  same,  and  not  having 

I  complied,  you  are  hereby  ordered  by  the  undersigned,  commissioners  of 

highways  for  the  town  of  Hanover  aforesaid,  to  remove,  or  cause 

Fr.Adm.Law— 22 


338  RELIEF  AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

tlie  same  to   be   removed,   said    fence   within  twenty   days   after   the 
receipt  of  this  order.  Andrew  Spitser, 

"  'Christophe  Sohle, 
"  'S.  N.  Campbell, 

"  'Commissioners   of    Highways.' 

"And  the  said  defendant  avers  that  the  said  highway  described 
in  said  order  was  the  same  identical  close  in  the  said  declaration 
mentioned,  the  said  close  being  then  and  there  part  and  parcel  of  an 
inclosed  field ;  and  the  said  defendant  further  avers  that  in  obedience 
to  said  order  he  did,  at  the  time  when,  etc.,  break  and  enter  upon 
the  close  in  the  said  order  and  in  the  said  plaintiff's  declaration  men- 
tioned, and  pull  down  the  said  fence  of  the  said  plaintiff,  and  re- 
move the  same  from  off  the  said  close  or  highway,  as  he  lawfully 
might  do,  for  the  cause  aforesaid ;  and  in  so  doing  he,  the  said  de- 
fendant, with  feet  in  walking  did  a  little  injure  the  herbage  and  grass, 
corn  and  grain  then  standing  and  growing  upon  the  said  close,  and 
did  a  little  break  the  boards,  rails  and  posts  of  which  said  fence  was 
erected,  doing  then  and  there  no  unnecessary  damage  to  the  said 
plaintiff,  which  are  the  same  supposed  trespasses  in  the  said  declara- 
tion mentioned,  and  this  defendant  is  ready  to  verify,  etc.  Where- 
fore, he  prays  judgment,"  etc.*^ 

Plaintiff  demurred  to  each  of  the  said  special  pleas,  in  which  de- 
fendants respectively  joined. 

Interlocutory  judgment  upon  demurrer  for  plaintiff,  general  is- 
sue withdrawn,  jury  impaneled  assessed  the  plaintiff's  damages,  $160. 
Final  judgment. 

Error  assigned:  In  sustaining  plaintiff's  demurrer  to  the  said  de- 
fendants' pleas. 

Cause  tried  before  J.  M.  Wilson,  Judge,  and  a  jury,  at  February 
term,  1855. 

Caton,  J.  We  are  of  the  opinion  that  the  demurrer  to  the  two 
special  pleas  was  properly  sustained  by  the  court  below.  They  jus- 
tify the  trespass  complained  of  under  an  order  issued  by  the  com- 
missioners of  the  town  of  Hanover,  directing  the  defendant  Guptail, 
who  was  overseer  of  highways,  to  open  a  public  highway  on  the  line 
between  sections  30  and  31,  in  that  town,  but  they  nowhere  show 
that  there  was  a  legally  laid  out  highway  there.  Unless  there  was' 
such  highway  there,  the  commissioners  of  highways  had  no  author- 
ity to  order  a  road  to  be  opened.  They  had  no  jurisdiction  to  act 
in  the  premises,  and  their  order  to  the  defendant  was  a  simple  nul- 
lity, conferring  upon  him  no  authority  whatever.  Only  in  such  a 
case  does  the  statute  authorize  them  to  issue  such  an  order.  Upon 
the  argument  an  attempt  was  made  to  liken  this  order  to  a  writ  is- 
sued by  a  court  of  justice,  which,  if  regular  upon  its  face  and 
emanating    from   a   court   having   authority   to   issue   such    writs,   is 

43  A  special  plea  by  the  other  plaintiffs  in  error,  Inhabitants  required  to 
render  road  labor,  is  omitted. 


Ch.  7)  ACTIONS   TO   RECOVER  DAMAGES   OR  MONEY.  339 

a  justification  to  a  ministerial  officer  who  executes  it,  although  in  fact 
it  is  issued  in  a  case  not  warranting  it.  In  such  a  case  the  ministerial 
officer  is  not  bound  to  go  behind  the  writ  and  inquire  into  the  reg- 
ularity of  the  previous  proceedings.  Were  the  cases  analogous,  the 
argument  would  be  conclusive;  but  they  are  not.  The  commis- 
sioners of  highways  do  not  constitute  a  court  in  any  sense,  although 
some  portion  of  their  duties  may  be  of  a  judicial  character.  Yet 
this  is  so  in  a  very  limited  sense,  and  the  duty  in  question  was  not  of 
that  character.  Not  only  the  commissioners  themselves,  but  others 
who  would  seek  a  justification  under  their  orders,  must  take  the  re- 
sponsibility of  showing  that  a  case  existed  which  justified  them  in 
issuing  their  order. 

I        This  the  pleas  do  not  show,  and  the  judgment  must  be  affirmed. 

;        Judgment  affirmed.'** 


CHEGARAY  v.  JENKINS. 

(Court  of  Appeals  of  New  York,  ISol.     5  N.  Y.  376.) 

This  action  was  commenced  in  the  Superior  Court  of  the  City  of 
New  York  to  recover  damages  for  the  taking  of  personal  property 
of  the  plaintifif  (Madame  Chegaray)  by  the  defendant.  The  defend- 
ant, who  was  a  constable  of  the  city  and  county  of  New  York,  justified 
the  taking  by  virtue  of  a  warrant  issued  to  him  by  the  receiver  of 
taxes  for  the  city  and  county  of  New  York  for  the  collection  of  a 
tax  alleged  to  have  been  duly  assessed  and  imposed  by  the  super- 
visors of  that  city  and  county  against  the  plaintiff,  and  upon  certain 
premises  in  the  city  of  New  York,  owned  and  occupied  by  the  plain- 
tiff, and  which  were  liable  to  taxation.  The  circumstances  under 
which  the  assessment  was  made  and  the  warrant-  issued,  are  stated  in 
the  opinion  of  Chief  Judge  Ruggles.  The  plaintiff"  obtained  a  ver- 
dict and  judgment  at  the  Special  Term,  which  on  bill  of  exceptions 
was  reversed  at  the  General  Term,  and  judgment  rendered  in  favor 
of  the  defendant.  The  plaintiff  appealed  to  this  court.  See  3  Sandf. 
409. 

Ruggles,  C.  J.*^  *  *  *  -p^^^^  there  is  an  insuperable  objection  to 
the  plaintiff's  recovery  in  this  action  against  the  collecting  officer. 
By  the  act  of  1843  (chapter  230)  the  office  of  collector  of  taxes  is 
abolished,  and  that  of  a  receiver  of  taxes  is  created.  By  article  2  of 
that  act  the  supervisors  are  required  to  cause  the  assessment  rolls  of 
each  ward  to  be  delivered  to  the  receiver,  with  warrants  annexed  for 
■:he  collection  of  the  taxes  from  each  person  assessed  on  or  before 
the  25th  of  September  in  each  year.  If  the  tax  remains  unpaid  to 
him  on  the  15th  of  April  following,  the  receiver  is  authorized  to  issue 

**  See.  accord,  Mill  v.  Hawker,  L.  R.  10  Ex.  92  (1875)  ;    Shoup  v.  Shields, 
116  111.  488,  G  N.  E.  502   (1886). 
<6  Only  a  portion  of  the  opinion  of  Ruggles,  C.  J.,  is  printed. 


340  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part   2 

his  warrant  directed  to  the  sheriff  or  to  any  constable  or  marshal  of 
the  city  and  county,  commanding  him  to  levy  the  tax  with  interest 
by  distress  and  sale  of  the  goods  of  the  person  against  whom  the 
warrant  is  issued,  and  to  pay  the  same  over  to  the  receiver. 

The  plaintiff's  property  was  assessed  by  the  officers  authorized  to 
make  assessments  in  the  ward  where  the  property  was  situated,  the 
assessment  was  confirmed  by  the  supervisors,  the  roll  and  warrant 
were  delivered  to  the  receiver,  the  tax  remained  unpaid  until  after 
the  day  mentioned  in  the  statute,  and  the  receiver  issued  his  warrant 
to  the  defendant,  a  constable,  for  its  collection  by  distress  and  sale. 
It  is  admitted  that  the  warrant  was  in  due  form  of  law.  There  is  no 
pretense  that  anything  appeared  on  its  face  showing  a  want  of 
authority  in  the  assessors  in  making  the  assessment,  in  the  super- 
visors in  confirming  it,  or  in  the  receiver  in  issuing  his  warrant.  The 
warrant,  therefore,  was  a  perfect  justification  to  the  officer  in  taking 
the  plaintiff's  property.  The  case  of  Savacool  v.  Boughton,  5  Wend. 
170,  21  Am.  Dec.  181,  is  conclusive  on  this  point.  It  was  there  settled 
that  a  ministerial  officer  is  protected  in  the  execution  of  process, 
whether  the  same  issue  from  a  court  of  general  or  limited  jurisdic- 
tion, although  such  court  have  not  in  fact  jurisdiction  of  the  case, 
provided  it  appears  on  the  face  of  the  process  that  the  court  has  juris- 
diction of  the  subject-matter,  and  the  process  in  other  respects  shows 
no  want  of  authority. 

The  principle  established  in  the  case  here  cited  is  applicable  to  the 
case  before  the  court.  The  assessors,  in  determining  whether  the 
plaintiff's  property  was  taxable  as  a  dwelling,  or  exempt  as  a  seminary 
of  learning,  acted  judicially  and  within  the  sphere  of  their  duty.  But 
being  officers  clothed  with  limited  powers  conferred  by  statute,  their 
decision  on  a  question  in  which  their  own  authority  to  act  was  in- 
volved, was  not  for  all  purposes  conclusive.  The  general  principle  is 
that  the  proceedings  of  magistrates  and  officers  having  special  and 
limited  jurisdiction  must  bear  on  their  face  the  evidence  of  their 
jurisdiction,  or  they  will  be  judged  invalid,  and  that  in  collateral 
actions  their  judgments  may  be  questioned  and  disregarded,  if  it  ap- 
pear that  in  fact  they  had  no  authority  to  act  in  the  given  case. 
Perhaps  in  the  present  case,  if  the  defendant  had  sold  the  plaintiff's 
property  for  the  tax  in  question,  the  legality  of  the  tax  might  have 
been  an  open  question  between  the  plaintiff  and  the  purchaser  in  an 
action  to  recover  the  property.  But  the  assessors,  having  the  general 
authority  to  make  assessments  for  taxation  within  the  ward  in  which 
the  plaintiff's  property  was  situated,  had  jurisdiction  of  the  subject- 
matter  of  the  assessment  in  question,  and  the  delivery  of  the  assess- 
ment roll  and  warrant  to  the  receiver  conferred  on  him  the  authority 
of  issuing  his  warrant  to  the  defendant  as  one  of  the  constables  of 
the  city  and  county.  It  was  no  part  of  the  duty  of  the  defendant,  a 
subordinate  officer,  to  overrule  or  to  dispute  the  authority  of  his 
superiors,  unless  upon  grounds  apparent  on  the  face  of  their  man- 


Ch.  7)  ACTIONS  TO   RECOVER  DAMAGES  OR  MONEY.  341 

date.  The  law  does  not  give  him  the  means  of  ascertaining  extrinsic 
facts  for  this  purpose,  nor  does  it  attribute  to  him  the  capacity  for 
reviewing  the  assessment  on  such  facts,  if  they  could  be  ascertained. 

The  cases  of  Suydam  v.  Keyes,  13  Johns.  444,  Smith  v.  Shaw, 
12  Johns.  257,  and' Wise  v.  Withers,  3  Cranch,  331,  3  L.  Ed.  457, 
so  far  as  they  countenance  the  contrary  doctrine,  are  overruled  in 
Savacool  v.  Boughton  above  referred  to.  The  constable  must  be 
protected  by  the  law,  in  the  discharge  of  a  duty  imposed  by  law.  The 
plaintiff  in  this  case  was  not  without  remedy.  Application  might  have 
been  made  in  the  first  instance  to  the  assessors  for  a  review  of  their 
assessment  (1  Rev.  St.  p.  393,  §  22),  and  if  that  failed  the  supervisors 
of  the  city  and  county  of  New  York  were  authorized  by  Act  May 
2,  1844,  c.  250,  §  2,  to  correct  any  erroneous  assessment  within  six 
months  after  the  return  of  the  assessment  rolls. 

Whether  the  error  in  this  assessment  might  have  been  corrected 
on  a  certiorari  to  the  assessors,  or  to  the  supervisors  after  having 
made  the  proper  application  to  them,  without  success,  for  relief,  is  not 
material  to  the  present  question.  The  constable  cannot  be  made 
responsible  on  the  ground  that  no  relief  elsewhere  can  be  had. 

Judgment  affirmed.*" 


SECTION    38.— SAME— ACTION    AGAINST    SUPERIOR 
OFFICER 


WHITFIELD  V.  EORD  LE  DESPENCER. 

(Court  of  King's  Bench,  177S.     1  Cowp.  754.) 

Action  on  the  case  against  the  Postmaster  General  on  account  of 
the  loss  of  a  bank  note  for  ilOO.  sent  by  the  plaintiff  in  a  letter. 
The  bank  note  had  been  stolen  by  a  sorter  in  the  post  office  in  London, 
who  had  been  convicted  and  executed  for  the  offense. 

Lord  Mansfield.*^  *  *  *  j  ghaii  consider  this  question  in  two 
lights:  (1)  As  it  stood  in  the  year  1699,  before  the  determination 
of  Lane  v.  Cotton,  12  Mod.  472.  (2)  As  it  stands  now,  since  that 
determination;  and  also,  what  has  been  done  in  consequence  of  that 
decision.    And  first  as  it  stood  in  the  year  1699. 

The  post  office,  as  Mr.  Lee  has  truly  said,  was  first  erected  during 
the  usurpation,  by  an  ordinance  of  Cromwell,  and  afterwards  more 

46  Accord:  Erskine  v.  Hohnbacli.  14  Wall.  613,  20  L.  Ed.  74.5  (1S72)  ;  Stuts- 
man County  V.  Wallace,  142  U.  S.  293,  12  Sup.  Ct.  227,  35  L.  Ed.  1018  (1892) ; 
Throop,  Public  Officers,  §§  756-770. 

See,  however,  Nichols  v.  Walker  &  Carter,  4  Cro.  Car.  394  (1634). 

*'  Only  a  portion  of  the  opinion  of  Lord  Mansfield  is  printed. 


342  RELIEF   AGAINST   ADMIXISTRATIVE   ACTION.  (Part    3 

fully  regulated  by  St.  12  Car.  II,  c.  35.  There  never  had  been 
action  brought,  either  upon  that  ordinance  or  upon  the  statute,  till 
the  case  of  Lane  v.  Cotton ;  and  the  same  mode  of  action  that  is  now- 
brought  was  the  mode  fixed  upon  in  the  case  of  Lane  v.  Cotton.  But 
neither  from  the  draught  of  the  declaration  by  the  advisers  of  that 
action,  nor  in  the  opinion  of  the  judges  upon  the  question,  does  it  ap- 
pear to  have  entered  into  the  imagination  of  either  that  this  was  a 
demand  upon  the  fund,  as  it  has  been  now  argued;  for  the  form  of 
action  is  not  applicable  to  such  a  demand.  If  there  could  be  a  demand 
upon  the  fund,  it  must  be  by  a  totally  different  form  of  action.  But 
this  is  a  demand  upon  the  postmaster  personally,  upon  the  ground  of 
a  neglect  in  him  by  his  own  act,  or  constructively  so,  by  the  fault  of 
his  servant.  If  the  fund  w^ere  in  the  nature  of  a  policy  of  insurance, 
to  insure  every  man,  who  sends  bills  or  notes  by  land  or  sea  carriage, 
from  a  loss  by  robbery  or  neglect,  such  contingency  would  be  a  de- 
duction out  of  the  fund;  and  no  doubt  in  that  case,  if  a  loss  were  to 
happen,  upon  an  action  brought  against  the  proper  officers  they 
would  be  liable,  being  bound  by  the  positive  constitution  of  the  office 
to  insure  every  person  for  the  fixed  and  established  rate  of  postage. 
But  here  the  act  of  Parliament  has  appropriated  the  whole  revenue. 
Therefore,  if  a  loss  is  paid,  there  must  be  an  item  of  it;  and  that 
item  must  come  under  the  appropriation.  But  it  is  manifest  no  such 
idea  was  ever  thought  of  at  the  time.  If  it  had  been  thought  of,  the 
ordinance  of  Cromw^ell,  or  the  act  of  Parliament,  would  in  terms 
have  charged  the  fund  for  all  losses  arising  from  neglect  or  other- 
wise. 

But  neither  this  action,  nor  the  case  of  Lane  v.  Cotton,  is  founded 
vipon  the  ground  of  the  fund  being  liable.  What  then  is  the  ground? 
It  is  that  the  postmaster  in  consequence  of  the  hire  he  receives,  is 
liable  for  all  the  damage  that  may  happen,  whether  owing  to  the 
negligence  or  dishonesty  of  the  persons  employed  under  him  to  con- 
duct and  carry  on  the  business  of  the  office.  If  that  position  were 
founded  in  the  extent  in  which  it  has  been  stated,  it  would  go  the 
length  of  making  the  defendants  liable  in  all  cases  whatsoev'er.  But 
the  argument  of  Lord  Chief  Justice  Holt,  who  differed  from  the  other 
judges  in  the  case  of  Lane  v.  Cotton,  does  not  extend  so  far  as 
that;  for  he  takes  a  difference  between  the  case  of  a  letter  lost  in 
the  office  by  a  servant  employed  under  the  postmaster,  and  that  of 
a  loss  upon  the  road,  or  by  the  mail  being  robbed  after  the  letter  has 
been  sent  safe  out  of  the  office.  The  ground  of  Lord  Chief  Justice 
Holt's  opinion  in  that  case  is  founded  upon  comparing  the  situation  of 
the  postmaster  to  that  of  a  common  carrier,  or  the  master  of  a  ship 
taking  goods  on  board  for  freight.  Now,  with  all  deference  to  so 
great  an  opinion,  the  comparison  between  a  postmaster  and  a  carrier, 
or  the  master  of  a  ship,  seems  to  me  to  hold  in  no  particular  what- 
soever. The  postmaster  has  no  hire,  enters  into  no  contract,  carries 
on  no  merchandise  or  commerce.     But  the  post  office  is  a  branch  of 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR   MONEY.  343 

revenue,  and  a  branch  of  police,  created  by  act  of  Parliament.  As 
a  branch  of  revenue,  there  are  great  receipts ;  but  there  is  likewise  a 
great  surplus  of  benefit  and  advantage  to  the  public,  arising  from  the 
fund. 

As  a  branch  of  police,  it  puts  the  whole  correspondence  of  the 
kingdom  ( for  the  exceptions  are  very  trifling)  under  government,  and 
intrusts  the  management  and  direction  of  it  to  the  crown,  and  officers 
appointed  by  the  crown.  There  is  no  analogy  therefore  between  the 
case  of  the  postmaster  and  a  common  carrier.  The  branch  of  reve- 
nue and  the  branch  of  police  are  to  be  governed  by  different  officers. 
The  superior  has  the  appointment  of  the  inferior  officers ;  but  they 
give  security  to  the  crown.  One  requisite  is  that  they  shall  take  the 
oaths  taken  by  all  public  officers.  Another  strong  guard  is,  that  they 
are  made  subject  to  heavy  penalties;  and  this  is  carried  so  far  that 
what  in  the  case  of  a  common  carrier,  or  any  other  person,  would  be 
only  a  breach  of  trust,  is  in  them  declared  to  be  a  capital  felony.  All 
these  advantages  the  law  provides  for  the  security  of  the  subject,  in 
consideration  of  their  being  obliged  to  send  their  letters  by  this  mode 
of  conveyance.  But  the  statute  does  not  make  the  postmaster  liable 
for  any  act  done,  except  in  one  particular  case,  which  is  very  re- 
markable, because  it  makes  him  liable  for  his  own  fault  only  (and 
not  for  that  of  his  deputies),  in  a  case  where  it  is  hardly  possible 
for  the  postmaster  himself  to  be  personally  in  fault.  The  statute 
(section  5)  creates  a  monopoly  in  the  postmaster  and  his  deputies  or 
substitutes,  of  providing  post  horses.  And  if  any  other  person  pre- 
sumes to  let  to  hire  any  post  horse,  for  the  purpose  of  carrying 
letters,  etc.,  he  is  liable  to  a  penalty  of  £5.  except  where  the  post- 
master or  his  deputies  do  not  furnish  horses  within  half  an  hour  after 
an  application  made;  for  then  the  party  is  at  liberty  to  hire  a  horse 
elsewhere.  And  in  that  case,  "if  it  be  through  default  or  neglect  of 
the  postmaster,  or  his  deputy,  that  such  person  fail  of  being  furnish- 
ed with  a  sufficient  horse  or  horses  in  time,  then  the  postmaster  or 
his  deputies  are  to  forfeit  £5." 

As  to  an  action  on  the  case  lying  against  the  party  really  offending, 
there  can  be  no  doubt  of  it;  for  whoever  does  an  act  by  which 
another  person  receives  an  injury  is  liable  in  an  action  for  the  injury 
sustained.  If  the  man  who  receives  a  penny  to  carry  the  letters  to 
the  post  office  loses  any  of  them,  he  is  answerable ;  so  is  the  sorter  in 
the  business  of  his  department.  So  is  the  postmaster  for  any  fault 
of  his  own.  Here  no  personal  neglect  is  imputed  to  the  defendants, 
nor  is  the  action  brought  on  that  ground ;  but  for  a  constructive  neg- 
ligence only,  by  the  act  of  their  servants.  In  order  to  succeed,  there- 
fore, it  must  be  shown  that  it  is  a  loss  to  be  supported  by  the  post- 
master, which  it  certainly  is  not. 

As  to  the  argument  that  has  been  drawn  from  the  salary  which 
the  defendants  enjoy:  In  a  matter  of  revenue  and  police  under  the 
authority  of  an  act  of  Parliament,  the  salary  annexed  to  the  office  is 


344  RELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part   2 

for  no  other  consideration  than  the  trouble  of  executing  it.  The 
case  of  the  postmaster,  therefore,  is  in  no  circumstance  whatever 
similar  to  that  of  a  common  carrier;  but  he  is  like  all  other  public 
officers,  such  as  the  lords  commissioners  of  the  treasury,  the  com- 
missioners of  the  customs  and  excise,  the  auditors  of  the  exchequer, 
etc.,  who  were  never  thought  liable  for  any  negligence  or  misconduct 
of  the  inferior  officers  in  their  several  departments. 

Thus  then  the  question  stood  in  the  year  1699.  In  that  year  a 
solemn  judgment  was  given  that  an  action  on  the  case  would  not  lie, 
against  the  Postmaster  General,  for  a  loss  in  the  office  by  the  neg- 
ligence or  fault  of  his  servant.  The  nation  understood  it  to  be  a 
judgment;  and  therefore  it  makes  no  difference,  if  what  has  been 
thrown  out  were  true,  and  the  writ  of  error  was  stopped  in  the  way 
that  has  been  mentioned.  For  the  bar  have  taken  notice  of  it  as  a 
judgment;  the  Parliament  and  the  people  have  taken  notice  of  it; 
every  man  who  has  sent  a  letter  since  has  taken  notice  of  it;  many 
acts  of  Parliament  for  the  regulation  and  improvement  of  the  post 
office,  and  other  purposes  relative  to  it,  have  passed  since,  which  by 
their  silence  have  recognized  it.  The  mail  has  been  robbed  a  hundred 
times  since,  and  no  action  whatever  has  been  brought.  What  have 
merchants  done  since  and  continue  to  do  at  this  day,  as  a  caution  and 
security  against  a  loss?  They  cut  their  bills  and  notes  into  two  or 
three  parts,  and  send  them  at  different  times;  one  by  this  day's  post, 
the  other  by  the  next.  This  shows  the  sense  of  mankind  as  to  their 
remedy.  If  there  could  have  been  any  doubt  therefore  before  the 
determination  of  Lane  v.  Cotton,  the  solemn  judgment  in  that  case, 
having  stood  uncontroverted  ever  since,  puts  the  matter  beyond  dis- 
pute.    Therefore,  we  are  all  clearly  of  opinion  the  action  will  not  lie. 

Per  Curiam.    Judgment  for  the  defendants. 


KEENAN  V.  SOUTHWORTH. 

(Supreme  Judicial   Court  of   Massachusetts,   1872.     110   Mass.   474,    14   Am. 
Rep.  613.) 

Tort  against  the  postmaster  of  East  Randolph,  to  recover  damages 
for  the  loss,  by  the  defendant's  negligence,  of  a  letter  addressed  to 
the  plaintiff.  At  the  trial  in  the  superior  court,  before  Pitman,  J.,  the 
plaintiff  introduced  evidence,  not  now  necessary  to  report,  that  the 
letter  was  received  at  the  post  office  at  East  Randolph,  and  was  lost 
by  the  negligence  or  wrongful  conduct  of  one  Bird,  who  was  the 
postmaster's  clerk.  The  plaintiff  having  disclaimed  "any  actual  par- 
ticipancy  or  knowledge  of  the  acts  of  Bird  on  the  part  of  the  de- 
fendant," the  judge  ruled  that  the  defendant  was  not  liable  for  any 
careless,  negligent  or  wrongful  acts  of  Bird;  and,  by  consent  of  the 
plaintiff,  he  directed  a  verdict   for  the  defendant,  and  reported  the 


Ch.  7)  ACTIONS  TO   RECOVER  DAMAGES  OR  MONEY.  345 

case  for  the  consideration  of  this  court.  If  the  ruHng  was  wrong, 
the  verdict  to  be  set  aside,  and  the  case  to  stand  for  trial ;  otherwise, 
judgment  for  the   defendant  on  the  verdict. 

Gray,  J.     The  law  is  well  settled,  in  England  and  America,  that 
the  Postmaster  General,  the  deputy  postmasters,  and  their  assistants   ■ 
and  clerks,  appointed  and  sworn  as  required  by«  law,  are  public  of- 
ficers, each  of  whom  is  responsible  for  his  own  negligence  only,  and 
not  for  that  of  any  of  the  others,  although  selected  by  him,  and  sub-  y 
ject  to  his  orders.     Lane  v.  Cotton,  1  Ld.  Raym.  ^\^,  12  Mod.  472 ;    \ 
Whitfield  V.  Le  Despencer,  Cowp.  754 ;   Dunlop  v.  Munroe,  7  Cranch, 
242,  3  L.  Ed.  329;    Schroyer  v.  Lynch,  8  Watts  (Pa.)  453;    Bishop 
V.  WilHamson,  11  Me.  495;    Hutch'ins  v.  Brackett,  22  N.  H.  252,  53 
Am.  Dec.  248. 

The  ruling  at  the  trial  was  therefore  right;  and  the  plaintiff,  having 
consented  to  a  verdict  for  the  defendant,  reserving  only  the  question 
of  the  correctness  of  that  ruling,  cannot  now  raise  the  question 
whether  there  was  sufficient  evidence  of  the  defendant's  own  negli- 
gence to  be  submitted  to  the  jury. 

Judgment  on  the  verdict.*® 

4  8  See  Robertson  r.  Sichel,  127  U.  S.  507,  8  Sup.  Ct.  1286,  32  L.  Ed.  203 
(ISSS),  accord. 

The  liability  of  certain  officers  connected  with  the  administration  of  justice 
who  were  paid  by  fees  (especially  sheriffs)  for  their  deputies  is  established  by 
common  law  and  frequently  recos;nized  by  statute.  See  Rev.  Laws  Mass.  c. 
23,  §  1 ;    Rev.  St.  111.  c.  125,  §  13. 

St.  Westm.  II,  13  Edw.  I,  c.  11:  "And  if  the  keeper  of  the  gaol  have  not 
wherewith  he  may  be  justified,  or  not  able  to  pay,  his  superior,  that  commit- 
ted the  custody  of  the  gaol  unto  him,  shall  be  answerable  (respondeat  superior 
suus)  by  the  same  writ." 

Also,  2  Henry  VI,  c.  10,  §  1423:  "All  the  officers  made  by  the  King's  letters 
patents  royal  within  the  said  courts  [of  our  lord  the  King]  which  have  power 
and  authority  by  virtue  of  their  offices  of  old  times  accustomed  to  appoint 
clerks  and  ministers  within  the  same  courts  shall  be  charged  and  sworn  to  ap- 
point such  clerks  and  ministers,  for  whom  they  will  answer  at  their  peril, 
which  be  sufficient,  faithful,  and  attending  to  that  which  pertaineth  to  them 
in  performance  of  the  business,  as  well  of  the  King,  as  of  his  people." 

See  Hazard  v.  Israel,  1  Bin.  (Pa.)  240,  2  Am.  Dec.  438  (1808) :  Campbell  v. 
Phelps,  1  Pick.  (Mass.)  62,  66,  11  Am.  Dec.  139  (1822) ;  Wood  v.  Farnell,  50 
Ala.  546  (1874)  ;    McNutt  v.  Livingston,  7  Smedes  &  M.  (Miss.)   641   (1846). 

The  following  additional  cases  in  this  collection  are  suits  against  officers : 
Grindley  v.  Barker,  1  Bos.  &  P.  229  (1798)  ;  McCoy  v.  Curtice,  9  Wend.  (X. 
Y.)  17,  24  Am.  Dec.  113  (1^32) ;  Meeker  v.  A'an  Rensselaer,  15  Wend.  (N.  Y.) 
397  (1836);  Johnson  v.  Stedman.  3  Ohio,  94  (1827);  Eldred  v.  Sexton,  5 
Ohio,  216  (1831);  Patterson  v.  Miller,  2  Mete.  (Ky.)  493  (1S59) :  Neff  v. 
Paddock,  26  Wis.  546  (1870)  ;  Hubbell  v.  Goodrich,  37  Wis.  84  (1875)  ;  Wil- 
cox V.  Hemming,  58  Wis.  144,  15  N.  W.  435,  46  Am.  Rep.  625  (1883);  King 
V.  Davenport.  98  111.  305,  38  Am.  Rep.  89  (1881)  ;  Baldwin  v.  Smith.  82  111. 
162  (1876);  Lawton  v.  Steele,  152  U.  S.  133,  14  Sup.  Ct.  499,  38  L.  Ed.  385 
(1894) ;  Potts  V.  Breen,  167  111.  67,  47  N.  E.  81,  39  L.  R.  A.  152,  59  Am.  St. 
Rep.  262  (1897);  Warne  v.  Varley,  6  T.  R.  443  (1795)  ;  Thompson  v.  Farrer, 
9  Q.  B.  D.  372  (1882)  :  Miller  v.  Horton,  152  Mass.  540,  26  N.  E.  100,  10  L. 
R.  A.  116.  23  Am.  St.  Rep.  850  (1891)  ;  De  Lima  v.  Bidwell,  182  U.  S.  1,  21 
Sup.  Ct.  743,  45  L.  Ed.  1041  (1901)  :  Cionzales  v.  Williams,  192  U.  S.  1,  24 
Sup.  Ct.  171,  48  L.  Ed.  317  (1904);  Martin  v.  Mott,  12  Wheat.  19,  6  L.  Ed. 
537  (1827);   Amy  v.  Supervisors,  11  Wall.  136,  20  L.  Ed.  101  (1870). 


346  BELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part    2 


SECTION    39.— ACTIONS    AGAINST    MUNICIPAL    CORPO- 
RATIONS—IN TORT  *» 


LEVY   V.    MAYOR,   ALDERMEN   AND    COMMONALTY   OF 

CITY  OF  NEW  YORK. 

(Superior  Court  of  City  of  New  York,  1S18.     1  Sandf.  4G.J.) 

Trespass  on  the  case. 

The  city  of  New  York,  having  the  requisite  power,  enacted  an  ordi- 
nance prohibiting  swine  from  running  at  large  in  the  streets,  with 
a  suitable  penalty,  and  a  provision  for  impounding  the  delinquent 
animals.  The  plaintiff's  infant  son  was  attacked  by  a  swine  straying 
in  the  street  and  was  mortally  injured. 

Demurrer  to  declaration.     *     ''^     *  ^° 

Sandford,  J.  The  plaintiff's  counsel  well  observed  that  there  was 
no  precedent  for  such  an  action  as  this,  and  we  are  compelled  to 
add  that  there  is  no  principle  upon  which  it  can  be  sustained. 

The  corporation  is  undoubtedly  vested  with  certain  legislative 
powers,  among  which  is  the  authority  to  restrain  swine  from  run- 
ning at  large  in  the  streets ;  and  they  have  exercised  it  by  enacting 
an  ordinance  to  that  effect.  The  idea,  that  because  they  may  prohibit 
a  nuisance,  that  therefore  they  must  not  only  pass  a  prohibitory  law, 
but  must  also  enforce  it,  at  the  hazard  of  being  subjected  to  all 
damages  which  may  ensue  from  such  nuisance,  is  certainly  novel. 
The  corporation  of  the  city  in  this  respect  stands  upon  the  same 
footing  within  its  own  jurisdiction  as  the  state  government  does  in 
respect  of  the  state  at  large. 

It  is  the  duty  of  the  government  to  protect  and  preserve  the  rights 
of  the  citizens  of  the  state,  both  in  person  and  property,  and  it  should 
provide  and  enforce  wholesome  laws  for  that  object.  But  injuries 
to  both  person  and  property  will  occur,  which  no  legislation  can 
prevent,  and  which  no  system  of  laws  can  adequately  redress.  The 
government  does  not  guaranty  its  citizens  against  all  the  casualties 
incident  to  humanity  or  to  civil  society;  and  we  believe  it  has  never 
been  called  upon  to  make  good,  by  way  of  damages,  its  inability  to 
protect  against  such  misfortunes. 

There  would  be  no  end  to  the  claims  against  this  city  and  state, 
if  such  an  action  as  this  is  well  founded.  If  a  man  were  to  be  run 
over,  and  his  leg  broken,  by  an  omnibus  racing  in  the  street,  he  would 
forthwith  sue  the  city  for  damages,  because  the  corporate  authorities 

4  9  The  question  of  liability  for  neglect  of  ministerial  duties  is  not  consid- 
ered. See  full  review  of  authorities  in  Hill  v.  Boston,  122  Mass.  344,  23  Am. 
Rep.  .332   (1877). 

5  0  The  statement  is  abridged. 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  «^4:7 

neglected  to  enforce  their  ordinance  against  racing  and  furious  driv- 
ing in  the  pubhc  streets.  So,  if  some  miscreant,  by  placing  a  stick 
of  timber  on  a  railroad  track,  should  cause  the  destruction  of  a  pas- 
senger train,  with  great  loss  of  life  and  limb,  the  Legislature  would 
be  petitioned  by  the  injured  survivors,  and  the  relatives  of  the  de- 
ceased, for  the  damages  thereby  occasioned,  on  the  ground  that  the 
public  servants  should  have  enforced  the  statute  enacted  against  such 
ofiFenses. 

There  are  innumerable  illustrations  of  the  application  of  the  prin- 
ciple. It  sufftces  to  say  that  no  government,  whether  national,  state 
or  municipal,  ever  assumed,  or  was  subjected  to,  a  general  liability  of 
this  description. 

There  is  no  analogy  between  a  municipal  corporation  in  respect  of 
its  legislative  functions,  and  the  duty  or  the  liability  of  turnpike  com- 
panies, or  other  private  corporations  aggregate.  And  the  same  may 
be  said  of  the  duty  of  commissioners  of  highways,  and  like  public 
officers,  clothed  with  adequate  power  for  the  performance  of  some 
plain  executive  or  ministerial  duty. 

As  to  the  argument  that  the  common  law  imposes  upon  the  cor- 
poration the  duty  and  liability  in  question,  we  are  unable  to  appreciate 
it.  Nor  do  we  understand  that,  as  a  corporation,  it  is  subjected  per 
se  to  the  duty  of  keeping  swine  out  of  the  streets. 

We  have  had  occasion  frequently  to  hold  the  city  liable  for  the 
negligence  and  misfeasance  of  its  officers  and  agents;  but  the  prin- 
ciple of  that  liability  has  no  application  here. 

Waiving  the  consideration  of  the  other  objections  to  the  action, 
which  are  presented  by  the  demurrers,  we  must  decide  that  the 
suit  cannot  be  maintained. 

Judgment  for  the  defendants.^ ^ 


ASHLEY  V.  CITY  OF  PORT  HURON. 

(Supreme  Court  of  Michigan,  1877.     35  Mich.  296,  24  Am.  Rep.  552.) 

CoOLEY,  C.  ].■'-  The  action  in  this  case  was  instituted  to  recover 
damages  for  an  injury  caused  to  the  house  of  plaintifif  by  the  cutting 
of  a  sewer  under  the  direction  of  the  city  authorities,  and  under 
city  legislation  the  validity  of  which  is  not  disputed.     The  necessary 

51  See.  accord,  Iliues  v.  Charlotte,  72  Mich.  278,  40  N.  W.  333,  1  L.  R.  A. 
844  (1888);  Joues  v.  Williamsburg,  97  Va.  722,  34  S.  E.  883,  47  L.  R.  A. 
294   (1900). 

Contra  :  Cochrane  v.  Frostburg,  81  Mtl.  54,  31  Atl.  703,  27  L.  R.  A.  728, 
48  Am.  St.  Rep.  479  (1895). 

As  to  statutory  liability  for  damage  done  by  mobs,  see  Darlington  v.  Mayor, 
etc..  31  N.  Y.  164,  88  Am.  Dec.  248  (18()5)  ;  Chicago  v.  Manhattan  Cement 
Co.,  178  111.  372,  53  N.  E.  68,  45  L.  R.  A.  848,  69  Am.  St.  Rep.  321  (1899). 

5  2  Only  a  portion  of  the  opinion  of  Cooley,  C.  J.,  is  printed. 


348  RELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part    2 

result  of  cutting  the  sewer,  the  plaintiff  claims,  was  to  collect  and 
throw  large  quantities  of  water  upon  his  premises  which  other- 
wise would  not  have  flowed  upon  them;  and  it  is  for  an  injury 
thereby  caused  that  he  sues.  The  evidence  offered  on  the  part  of  the 
plaintiff  tended  to  establish  the  case  he  declared  upon ;  but  the  court 
instructed  the  jury  that,  though  they  should  find  the  facts  to  be 
as  the  plaintiff  claimed,  they  must  still  return  a  verdict  for  the  de- 
fendant. The  ground  of  this  decision,  as  we  understand  it,  was  that 
the  city,  in  ordering  the  construction  of  the  sewer  and  in  constructing 
it,  was  acting  in  the  exercise  of  its  legislative  and  discretionary 
authority,  and  was  consequently  exempt  from  any  liability  to  persons 
who  might  happen  to  be  injured.  That  is  the  ground  that  is  assumed 
by  counsel  for  the  city  in  this  court,  and  it  is  supposed  to  be  the 
ground  on  which  the  case  was  decided  in  the  court  below. 

In  Pontiac  v.  Carter,  32  Mich.  164,  the  question  of  the  liability  of 
a  municipal  corporation  for  an  injury  resulting  from  an  exercise  of 
its  legislative  powers  was  considered,  and  it  was  denied  that  any 
liability  could  arise  so  long  as  the  corporation  confined  itself  within  the 
limits  of  its  jurisdiction.  That  was  a  case  of  an  incidental  injury  to 
property  caused  by  the  grading  of  a  street.  The  plaintiff's  premises 
were  in  no  way  invaded,  but  they  were  rendered  less  valuable  by  the 
grading,  and  there  was  this  peculiar  hardship  in  the  case,  that  the 
injury  was  mainly  or  wholly  owing  to  the  fact  that  the  plaintiff's 
dwelling  had  been  erected  with  reference  to  a  grade  previously  es- 
tablished and  now  changed.  In  the  subsequent  case  of  City  of  De- 
troit V.  Beckman,  34  Mich.  125,  22  Am.  Rep.  507,  the  same  doctrine 
was  reaffirmed.  That  was  a  case  of  injury  by  being  overturned 
in  a  street  in  consequence  of  what  was  claimed  to  be  an  insufficient 
covering  of  a  sewer  at  a  point  where  two  streets  crossed  each  other. 
It  was  counted  upon  as  a  case  of  negligence,  but  the  negligence  con- 
sisted only  in  this :  That  the  city  had  failed  to  provide  for  covering 
the  sewer  at  the  crossing  of  a  street  for  such  a  width  as  a  proper  re- 
gard for  the  safety  of  people  passing  along  the  street  would  require. 
If  this  case  is  found  to  be  within  the  principle  of  the  cases  referred 
to,  the  ruling  below  must  be  sustained,  and  that,  we  think,  is  the  only 
question  we  have  occasion  to  discuss. 

The  cases  that  bear  upon  the*  precise  point  now  involved  are  numer- 
ous. In  Proprietors  of  Locks,  etc.,  v.  Lowell,  7  Gray  (Mass.)  223, 
it  was  held  that  a  city  was  liable  in  an  action  of  tort  for  draining 
water  through  sewers  and  drains  into  a  canal  owned  by  a  private  cor- 
poration, thereby  causing  injury  to  the  canal;  the  conclusion  being 
planted  on  the  right  of  the  corporation  "to  an  unmolested  enjoyment 
of  the  property,"     *     *     * 

In  Rochester  White  Lead  Co.  v.  Rochester,  3  N.  Y.  4G3,  53  Am. 
Dec.  316,  the  city  was  made  to  respond  in  damages  for  flooding 
private  premises  with  waters  gathered  in  a  sewer.  This  case  is  com- 
mented on  in  Mills  v.  Brooklyn,  32  N.  Y.  489,  and  distinguished  from 


Ch.  7)  ACTIONS   TO  KECOVER  DAMAGES   OR  MONEY.  349 

one  in  which  the  injury  complained  of  arose  from  the  insufficiency 
of  a  sewer  which  was  constructed  in  accordance  with  the  plan  deter- 
mined upon.     Obviously  the  complaint  in  that  case  was  of  the  legis- 
lation itself,  and  of  incidental  injuries   which  it  did  not  sufficiently 
provide   against.     The   like   injuries   might   result   from   a   failure  to 
I     construct  any  sewer  whatever ;   but  clearly  no  action  could  be  sustain- 
ed for  a  mere  neglect  to  exercise  a  discretionary  authority.    Compare 
!     Smith  V.  Mayor,  etc.,  6  Thomp.  &  C.    (N.  Y.)    685,  4  Hun,   G37; 
I    Nims  V.  Mayor,  etc.,  59  N.  Y.  500. 

Cases  of  flooding  lands  by  neglect  to  keep  sewers  in  repair,  of 
which  Barton  v.  vSyracuse,  37  Barb.  29.2,  and  36  N.  Y.  54,  is  an  in- 
I  stance,  are  passed  by,  inasmuch  as  it  is  not  disputed  by  counsel  for 
I  the  defendant  in  this  case  that  for  negligent  injuries  of  that  descrip- 
I  tion  the  corporation  would  be  responsible.  Those  cases  are  supposed 
i  by  counsel  to  be  distinguished  from  the  one  before  us  in  this :  That 
'  here  the  neglect  complained  of  was  only  of  a  failure  to  exercise  a 
'  legislative  function,  and  thereby  provide  the  means  for  carrying 
I  off  the  water  wdiich  the  sewer  threw  upon  the  plaintiff's  premises. 
j  The  distinction  is  that  the  obligation  to  establish  and  open  sew-ers  is 
'  a  legislative  duty,  while  the  obligation  to  keep  them  in  repair  is 
ministerial.  But  it  is  not  strictly  the  failure  to  construct  sewxrs  to 
;  carry  oft"  the  water  that  is  complained  of  in  this  case.  It  is  of  the 
I  positive  act  of  casting  water  upon  the  plaintift''s  premises  by  the  sewer 
I    already  constructed. 

;  An  action  like  the  on6  at  bar  was  sustained  in  Nevins  v.  Peoria, 
'  41  111.  502,  89  Am.  Dec.  393,  Aurora  v.  Gillett,  56  111.  132,  Aurora  v. 
Reed,  57  111.  30,  11  Am.  Rep.  1,  Alton  v.  Hope,  68  111.  167,  and  Jack- 
'  sonville  v.  Lambert,  62  111.  519.  The  same  is  true  of  Pettigrew  v. 
I  Evansville,  25  Wis.  223,  3  Am.  Rep.  50,  where  Dixon,  C.  J.,  is  at 
J  some  pains  to  distinguish  the  case  from  one  of  merely  incidental 
j  injuries.  The  case  of  Vincennes  v.  Richards,  23  Ind.  381,  appears  by 
i  the  report  to  have  turned  on  this  distinction.  And  see  Cotes  v.  Daven- 
!    port,  9  Iowa,  227.     *     *     ^■'• 

!  It  is  very  manifest,  from  this  reference  to  authorities,  that  they 
!  recognize  in  municipal  corporations  no  exemption  from  responsibility 
'  where  the  injury  an  individual  has  received  is  a  direct  injury  accom- 
j  plished  by  a  corporate  act  which  is  in  the  nature  of  a  trespass  upon 
t  him.  The  right  of  an  individual  to  the  occupation  and  enjoyment  of 
j  his  premises  is  exclusive,  and  the  public  authorities  have  no  more 
i   liberty  to  trespass  upon  it  than  has  a  private  individual.     *     *     * 

A  municipal  charter  never  gives  and  never  could  give  authority  to 
I  appropriate  the  freehold  of  a  citizen  without  compensation,  whether 
'■•  it  be  done  through  an  actual  taking  of  it  for  streets  or  buildings, 
'  or  by  flooding  it  so  as  to  interfere  with  the  owner's  possession.  His 
i  property  right  is  appropriated  in  the  one  case  as  much  as  in  the  other. 
1    Pumpelly  v.  Green  Bay  Co.,  13  Wall.  166,  20  L.  Ed.  557;   Arimond 


350  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

V.  Green  Bay,  etc.,  Co.,  31  Wis.  316;   Eaton  v.  B.  C.  &  M.  R.  R.  Co.. 
51  N.  H.  504,  12  Am.  Rep.  147. 

A  like  excess  of  jurisdiction  appears  when  in  the  exercise  of  its 
powers  a  municipal  corporation  creates  a  nuisance  to  the  injury  of  an 
individual.  The  doctrine  of  liability  in  such  cases  is  familiar,  and  was 
acted  upon  in  Pennoyer  v.  Saginaw,  8  Mich.  534.     *     *     *  •"'S 


COHEN  V.  MAYOR,  ETC.,  OF  NEW  YORK. 

(Court  of  Appeals  of  New  York.  1889.     113  N.  Y.  5.32,  21  N.  E.  700,  4  L.  R, 
A.  40a,  10  Am.  St.  Rep.  50(5.) 

Appeal  from  Supreme  Court,  General  Term,  First  Department. 

This  action  was  brought  by  Hannah  and  Abraham  Cohen,  as  ad- 
ministrators, to  recover  damages  for  the  death  of  plaintififs'  decedent, 
which  occurred  by  reason  of  a  wound  in  the  head  caused  by  the  falling 
of  a  pair  of  thills  attached  to  a  grocer's  wagon  upon  him  while 
the  decedent  was  walking  through  one  of  the  streets  of  the  city  of 
New  York.  Evidence  was  given  on  the  trial  tending  to  prove  the 
following  facts : 

On  the  morning  of  October  20,  1879,  one  Pischel  Cohen  was  walk- 
ing through  Attorney  street  in  such  city,  and  at  the  same  time  an  ice 
wagon  was  passing  south  through  that  street,  and  a  wagon  loaded 
with  coals  was  coming  north  through  the  same  street.  A  grocery 
wagon,  without  any  horse  attached,  was  standing  in  front  of  the 
grocery  store  kept  by  one  Marks,  who  owned  the  wagon.  The  thills 
were  tied  up  in  a  perpendicular  manner  with  some  kind  of  string; 
and  the  length  of  the  wagon  was  parallel  with  the  length  of  the  street. 

5  3  Accord:  Miles  v.  Worcester,  1.54  Mass.  511,  28  N.  E.  G7G,  13  L.  R.  A. 
841,  26  Am.  St.  Rep.  2G4  (1891);  Huffmlre  v.  Brooklyn,  1G2  N.  Y.  584.  57 
N.  E.  170.  48  L.  R.  A.  421  (1900),  destruction  of  oysters  by  sewage;  PlatI 
Bros.  V,  Waterbury,  72  Conn.  531,  45  Atl.  154,  48  L.  R.  A.  G91.  77  Am.  St.  Reii. 
.335  (1900)  with  notes.  Contra:  Duncan  v.  Lynchburg  (Va.,  not  oHiciallv 
reported)  34  S.  E.  9G4,  48  L.  R.  A.  331  (1900) ;  Board  of  Education  of  Cin- 
cinnati V.  Yolk,  72  Ohio  St.  4G9,  74  N.  E.  640  (1905). 

See  Johnston  v.  District  of  Columbia,  118  U.  S.  19.  G  Sup.  Ot.  923.  30  L. 
Ed.  75  (1886)  :  "The  duties  of  the  municipal  authorities,  in  adopting  a  gen- 
eral plan  of  drainage,  and  determining  when  and  where  sewers  shall  be  built, 
of  what  size  and  at  what  level,  are  of  a  quasi  .ludicial  nature.  Involving  the 
exercise  of  deliberate  .judgment  and  large  discretion,  and  depending  upon  con- 
.siderations  affecting  the  public  health  and  general  convenience  throughout  an 
extensive  territory ;  and  the  exercise  of  such  judgment  and  discretion,  in 
the  selection  and  adoption  of  the  general  plan  or  system  of  drainage,  is  not 
subject  to  revision  by  a  court  or  jury  in  a  private  action  for  not  sufficiently 
draining  a  particular  lot  of  land.  But  the  construction  and  repair  of  sewers 
according  to  the  general  plan  so  adoi)ted  are  simply  ministerial  duties,  and 
for  any  negligence  in  so  constructing  a  sewer,  or  keeping  it  in  repair,  the  mu- 
nicipality which  has  constructed  and  owns  the  sewer  may  be  sued  by  a  per- 
son whose  property  is  thereby  injured." 

As  to  dLstinctiou  between  legislative  and  ministerial  acts,  compare  JMills 
V.  Brooklyn,  32  N.  Y.  489  (18G5),  with  Barton  v.  Syracuse,  36  N.  Y.  54 
(1867). 


Ch.  7)  ACTIONS  TO  RECOVER  DAMAGES  OR  MONEY.  351 

For  some  reason  the  driver  of  the  ice  wagon  started  up  his  horses, 
seemingly  for  the  purpose  of  passing  the  grocery  wagon  before  the 
driver  of  the  coal  wagon  should  reach  it.  The  street  was  narrow, 
and  the  ice  man's  wagon  caught  in  some  way  against  the  wheel  of 
the  grocery  wagon,  and  turned  the  wagon  somewhat  around,  so 
that  the  thills  came  down  on  the  sidewalk.  At  that  time  Cohen  was 
passing,  and  the  iron  on  one  of  the  thills  struck  him  on  the  head 
and  knocked  him  down,  inflicting  an  injury  upon  him,  from  the  efifect 
of  which  he  died  the  same  day.  The  string  with  which  the  thills 
were  fastened  was  a  thin,  common  string;  and  they  had  been  tied 
up  that  way  for  several  months,  but  whether  with  the  identical 
string  used  on  the  occasion  when  the  accident  occurred  the  witness 
could  not  say.  The  wagon  was  used  by  its  owner,  the  grocer,  as  the 
evidence  tended  to  show,  for  the  purpose  of  facilitating  the  trans- 
action of  his  private  business ;  and  it  was  in  no  sense  a  public  cart. 
When  not  in  actual  use,  the  wagon  was  kept  in  the  street  in  front  of 
the  owner's  grocery  store,  day  and  night,  under  a  permit  which  was 
granted  by  defendant  in  consideration  of  the  payment  by  the  owner 
of  two  dollars  therefor.  No  law  or  ordinance  existed  which  gave 
jurisdiction  to  the  defendant  through  its  common  council,  or  through 
any  of  its  officers,  to  license  or  permit  such  a  use  of  the  highway. 

Upon  this  evidence  as  to  the  manner  in  which  the  accident  occurred 
the  court  directed  the  jury  to  find  a  verdict  for  the  defendant,  and  the 
plaintiff  duly  excepted  to  such  direction.  The  direction  was  given  by 
the  court  below  on  the  ground  that  the  cause  of  the  injury  was  the 
defective  manner  in  which  the  thills  were  tied,  and  there  was  no 
evidence  of  any  notice  to  the  city  as  to  that  fact.  The  General  Term 
affirmed  the  judgment  of  the  circuit  court,  and  plaintiffs  appeal. 

Pbckham,  J.  (after  stating  the  facts  as  above).  The  storing  of  the 
wagon  on  the  highway  was  a  nuisance.  The  primary  use  of  a  high- 
way is  for  the  purpose  of  permitting  the  passing  and  repassing  of  the 
public;  and  it  is  entitled  to  the  unobstructed  and  uninterrupted  use 
of  the  entire  width  of  the  highway  for  that  purpose,  under  temporary 
exceptions  as  to  deposits  for  building  purposes,  and  to  load  and  un- 
load wagons,  and  receive  and  take  away  property  for  or  in  the  in- 
terest of  the  owners  of  the  adjoining  premises,  which  it  is  not  now 
necessary  to  more  specifically  enumerate.  The  extent  of  the  right 
of  such  exceptional  user  was  before  us  in  the  late  case  of  Callanan 
V.  Oilman,  107  N.  Y.  360,  14  N.  E.  264,  1  Am.  St.  Rep.  831,  and 
nothing  more  need  be  said  regarding  it  here. 

It  is  no  answer  to  the  charge  of  nuisance  that,  even  with  the 
obstruction  in  the  highway,  there  is  still  room  for  two  or  more  wagons 
to  pass,  nor  that  the  obstruction  itself  is  not  a  fixture.  If  it  be  perma- 
nently or  even  habitually  in  the  highway,  it  is  a  nuisance.  The  high- 
way may  be  a  convenient  place  for  the  owner  of  carriages  to  keep 
them  in,  but  the  law,  looking  to  the  convenience  of  the  greater  num- 
ber, prohibits  any  such  use  of  the  public  streets.     The  old  cases  said 


352  RELIEF  AGAINST   ADMIXII^TUATIVE   ACTION.  (Part    2 

the  king's  highway  is  not  to  be  used  as  a  stable  yard;  and  a  party 
cannot  eke  out  the  inconvenience  of  his  own  premises  by  taking  in 
the  pubhc  highway.  These  general  statements  are  familiar,  and  are 
borne  out  by  the  cases  cited.  King  v.  Russell,  6  East,  427,  decided  in 
May,  1805;  Rex  v.  Cross,  3  Camp.  221;  Rex  v.  Jones,  Id.  230; 
People  V.  Cunningham,  1  Denio,  524,  43  Am.  Dec.  709;  Davis  v. 
Mayor,  etc.,  14  N.  Y.  506,  524,  67  Am.  Dec.  186;  Callanan  v.  Oilman, 
supra. 

Familiar  as  the  law  is  on  this  subject,  it  is  too  frequently  disre- 
garded or  lost  sight  of.  Permits  are  granted  by  common  councils 
of  cities,  or  by  other  bodies  in  which  the  power  to  grant  them  for 
some  purposes  is  reposed ;  and  they  are  granted  for  purposes  in 
regard  to  which  the  body  or  board  assuming  to  represent  the  city 
has  no  power  whatever,  and  the  permit  confers  no  right  upon  the 
party  who  obtains  it.  As  was  said  by  Lord  EHenborough  in  the  case 
of  Rex  V.  Jones,  supra,  the  law  upon  the  subject  is  much  neglected, 
and  great  advantages  would  arise  from  a  strict,  steady  application  of 
it.  This  case  is  a  good  example  of  its  neglect.  There  is  no  well- 
founded  claim  of  the  existence  of  a  power  in  the  defendant  to  issue 
such  a  license.  The  defendant  refers  to  sections  10  and  27  of  chapter 
37  of  the  ordinances  of  1859.  The  former  provides  for  an  assign- 
ment by  the  mayor  of  a  stand  where  the  owner  of  a  duly-licensed 
public  cart  may  let  it  remain  waiting  to  be  employed,  and  also  a 
stand  where  it  may  remain  at  other  times  upon  certain  terms,  etc. 
The  latter  section  refers  to  a  licensed  cartman,  and  provides  for 
storing  his  cart  in  front  of  his  premises  under  certain  regulations. 
Neither  section  has  anything  to  do  with  a  case  like  this.  The  Leg- 
islature has  expressly  enacted  that  the  city  shall  have  no  power  to 
authorize  the  placing  or  continuing  of  any  encroachments  or  ob- 
structions upon  any  street  or  sidewalk,  except  the  temporary  occu- 
pation thereof  during  the  erection  or  repair  of  a  building  on  a  lot 
opposite  the  highway.  Consolidation  x\ct,  p.  23,  §  86,  subd.  4; 
People  V.  Mayor,  etc.,  59  How.  Prac.  277 ;  Ely  v.  Campbell,  59  How. 
Prac.  333;    Lavery  v.  Hannigan,  20  Jones  &  S.  463. 

The  owner  of  this  wagon  was  not  a  cartman,  nor  was  the  wagon 
used  as  a  public  cart,  but  only  as  a  means  to  enable  the  grocer  to 
transact  his  own  private  business.  He  acquired  no  right  by  virtue  of 
the  license  to  store  his  wagon  in  the  street;  and,  in  doing  so,  he  was 
clearly  guilty  of  maintaining  a  public  nuisance.  The  defendant  was 
also  guilty.  It  assumed  to  authorize  the  erection  and  continuance 
of  a  public  nuisance.  To  be  sure,  the  legal  power  to  grant  the  li- 
cense to  obstruct  the  street  was  by  the  Legislature  withheld  from 
the  defendant,  yet,  nevertheless,  it  did  grant  just  such  a  permit  and 
took  compensation  on  account  of  it.  In  thus  doing,  the  city  became 
a  partner  in  the  erection  and  continuance  of  such  nuisance.  It  was 
a  nuisance,  not  by  reason  of  the  manner  in  which  the  thills  were  tied 
up,   but  because  the   wagon   was   stored   in   the   street.     It   was   not 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  353 

a  mere  negative  attitude  which  the  defendant  adopted,  such  as  would 
have  been  the  case  had  it  simply  acquiesced  in  the  manner  in  which 
the  street  was  used.  In  this  case  it  not  only  acquiesced  in  such  use, 
but  it  actually  encouraged  it  by  making  out  and  delivering  a  license  to 
do  it;  and  it  received  directly  and  immediately  from  the  owner  of 
the  wagon  a  compensation  for  the  erection  and  maintenance  of  a 
nuisance  under  the  authority  of  such  license.  Under  such  circum- 
tances  the  defendant  must  be  held  liable  the  same  as  if  it  had  itself 
maintained  the  nuisance;  for  the  owner  of  the  wagon  was  nothing 
more  than  an  agent  through  whom  the  defendant  did  this  unlawful 
act.     Irvine  v.  Wood,  51  N.  Y.  224,  10  Am.  Rep.  603. 

But,  assuming  that  the  city  had  no  right  to  issue  the  permit,  it 
is  urged  that  such  license  did  not  authorize  the  negligence  which 
caused  Cohen's  death,  and  that  the  act  of  the  defendant  was  too  re- 
mote to  be  regarded  as  the  proximate  cause  of  the  damage  herein. 
We  do  not  think  so.  The  act  of  the  defendant  was  wrongful,  and 
it  consisted  in  setting  up  an  obstruction  in  the  public  highway,  and 
this  accident  happened  because  of  the  presence  of  the  obstruction  at 
the  point  in  question.  It  was  there  by  the  act  of  the  defendant,  and, 
being  there,  it  has  caused  the  injury.  To  be  sure,  it  may  be  said 
that,  if  the  thills  had  not  been  negligently  tied,  they  would  not  have 
fallen.  But  that  was  simply  the  way  in  which,  by  reason  of  the  pres- 
ence of  the  obstruction,  the  accident  occurred.  There  is  always  rea- 
sonable ground  for  apprehending  accidents  'from  obstructions  in  a 
public  highway,  atid  any  person  who  wrongfully  places  them  there, 
or  aids  in  so  doing,  must  be  held  responsible  for  such  accidents  as 
occur  by  reason  of  their  presence.  The  obstruction  in  such  case 
must  be  regarded,  within  the  meaning  of  the  law  on  the  subject,  as 
the  proximate  cause  of  the  damage. 

We  think  that  in  a  case  like  this,  where  no  obstruction  would 
have  existed  but  for  the  wrongful  conduct  of  defendant,  it  must  be 
held  responsible  for  the  damage  which  is  caused  by  reason  of  the 
obstruction,  even  though  it  might  not  have  happened  if  the  licensee 
had  been  careful  in  regard  to  the  manner  in  which  he  exercised  the 
assumed  right  granted  him  by  the  license.  The  defendant,  under 
these  circumstances,  must  take  the  risk  of  such  care,  and  not  an  in- 
nocent passer-by.  This  is  not  a  case  for  the  application  of  the  doc- 
trine that  where  the  injury  results  from  the  negligent  mode  in  which 
the  licensee  exercises  the  privilege  granted  to  him,  which  mode  is 
not  part  of  the  license,  there  must  be  proof  of  negligence  showing 
permission  to  use,  or  acquiesence  in  the  use  of,  the  mode  after  notice 
or  knowledge  on  the  part  of  the  licensor.  That  may  be  the  rule 
where  the  thing  licensed  is  legal  because  of  the  license,  and  the  il- 
legality consists  in  the  manner  in  which  the  license  is  carried  out. 
The  difficulty  here  does  not  alone  consist  in  the  negligent  manner 
of  fastening  up  the  thills,  but  the  license  itself — the  permission,  with 
Fr.Adm.Law— 23 


y 


354  KIOLIEF   AGAINST   ADM1M3TUAT1VE   ACTION.  {VlXTt    2 

or  without  a  consideration,  to  obstruct  the  street  at  all  for  any  such 
purpose  as  was  the  case  here — is  the  wrongful  act  on  the  part  of  the 
ilefendant  which  renders  it  responsible  for  the  damage  natural) \ 
sustained   from  such  obstruction. 

We  do  not  say  that  this  principle  of  responsibility  would  render 
the  city  liable  in  every  case  of  a  mistaken  exercise  of  power  au- 
thorizing the  use  or  occupancy  of  a  public  street  by  an  individual. 
We  confine  ourselves  to  the  decision  of  this  case,  and  we  simply  say 
Ythat  when  the  city,  without  the  pretense  of  authority,  and  in  direct 
violation  of  a  statute,  assumes  to  grant  to  a  private  individual  the 
right  to  obstruct  the  public  highway  while  in  the  transaction  of  his 
private  business,  and  for  such  privilege  takes  compensation,  it  must 
be  regarded  as  itself  maintaining  a  nuisance  so  long  as  the  obstruc- 
tion is  continued  by  reason  of  and  under  such  license,  and  it  must 
be  liable  for  all  damages  which  may  naturally  result  to  a  third  parly 
who  is  injured  in  his  person  or  his  property  by  reason  or  in  conse- 
quence of  the  placing  of  such  obstruction  in  the  highway.^  This  is 
none  tcxi  severe  a  liability.  It  is  to  be  hoped  that  its  enforcement 
will  tend  to  the  discontinuance  of  a  custom  of  granting  permits  or 
licenses  to  do  what  it  is  well  known  the  city  has  no  right  to  au- 
thorize or  license.  Such  licenses,  it  is  matter  of  public  notoriety,  arc 
constantly  granted  without  any  semblance  of  legal  authority;  and  the 
licensees  are  continually  acting  under  them,  and  obstructing  the  pub- 
lic streets,  to  the  serious  inconvenience  and  danger  of  the  public. 
\\'hen  it  is  understood  that  such  license  has  not  only  no  effect  in 
the  way  of  legalizing  an  obstruction,  but  that  it  simply  makes  the 
city  a  partner  in  the  maintenance  of  a  public  nuisance,  and  liable 
for  the  damage  caused  thereby,  such  knowledge  may  perhaps  re- 
strain the  utterly  illegal  practice,  and  tend  in  some  degree  to  the 
protection  of  the  public  in  the  lawful  use  of  its  own  highways. 

The  judgment  must  be  reversed,  and  a  new  trial  granted,  with 
costs  to  abide  the  event.  All  concur,  except  Gr.\y,  J.,  dissenting  on 
the  ground  that,  assuming  the  city  could  not  legally  grant  a  license 
to  Marks  to  keep  his  wagon  in  the  street,  that  fact,  in  this  case, 
was  not  sufficient  to  charge  the  city  with  liability  for  the  occurrence 
complained  of.  The  proximate  or  immediate  cause  of  the  injury  to 
the  plaintiff's  intestate  was  the  negligent  acts  of  others.^* 

s*  See.  r.aiulau  v.  New  York.  ISO  X.  Y.  48.  72  X.  E.  0;^1.  10.".  Am.  St.  B.e]\ 
70!>  (lOW^  :  Van  Cleef  v.  Chuasio.  240  111.  .SIS.  SS  X.  E.  81o,  21^  L.  K.  A.  (N. 
S.)  080.  VAO  Am.  St.  Rep.  275  (lUOO)  ;  Little  v.  Madison,  42  Wis.  043,  24 
Am.  Kep.  43o  US77). 


I 

I    Ch.  7)  ACTIONS  TO   KKCOVEU  DAMAGES  OR  MONEY.  355 

CRAIG  V.  CITY  OF  CHARLESTON. 

(.Supreme  Court  of  Illinois.     1800.     180  111.  154,  54  N.  E.  184.) 

Appeal   from  Appellate  Court,  Third   District. 

Action  by   Edward    C.   Craig  against  the   City  of   Charleston.     A 

judgment  for  defendant  on  demurrer  was  affirmed  by  the  Appellate 
I  Court  (78  111.  App.  312),  and  plaintiff  appeals.     Affirmed. 
i      PfiR  Curiam.     In  affirming  the  judgment  of  the  circuit  court  for 
,  costs  and  sustaining  the  demurrer  to  the  plaintiff's  declaration,  the 

following  opinion,  delivered  by  Mr.  Justice  Haukur,  was  rendered  by 

the  Appellate  Court: 
I  "The  sufficiency  of  the  declaration  is  the  only  question  for  our 
!  consideration.  Stripped  of  their  surplusage,  the  material  averments 
i  of  fact  are  that  the  city  of  Charleston,  on  an  occasion  when  a  large 
I  crowd  of  people  had  congregated  in  the  city,  appointed  one  John 
j  Apgar  as  an  officer  to  prevent  the  obstruction  of  the  streets  by  ve- 
j  hides  or  otherwise,  and  placed  him  hi  control  of  one  of  the  streets ; 
I  that  Apgar  was  a  dangerous  and  violent  man,  and  possessed  an  ungov- 
i  ernable  temper  and  vicious  disposition,  which  facts  were  known,  or 
■  by  the  exercise  of  reasonable   diligence   could  have  been  known,  to 

the  appointing  officer;    that  Apgar,  while  in  charge  of  the  street  and 

I  under  pretense  of  discharging  his  duty,  made  a  brutal  and  unjustifi- 

i  able  assault  upon  the  plaintiff  with  a  stick,  whereby  the  plaintiff  lost 

lone  of  his  eyes,  and  was  otherwise  injured.     The  duties  devolving  up- 

ion  Apgar   by   virtue  of    his    appointment   were   police   duties.     He 

iwas  what  is  sometimes  aptly  termed  a  'special  policeman,'  authorized 

I  to  perform  certain  specific  acts.     It  is  a  familiar  rule  of  law,   sup- 

j  ported  by  a  long  line  of   well-considered  cases,  that  a  city,   in   the 

i performance  of  its  police  regulations,  cannot  commit  a  wrong  through 

jits  officers  in  such  a  way  as  to  render  it  liable  for  tort. 

"It  is  contended,  however,  that  appellant  does  not  base  his  right 

jof  recovery  against  the  city  upon  the  wrongful  act  of  Apgar,  mere- 

jly,  but  upon  the  wrongful  act  of  the  mayor  in  appointing  such  a  man 

|as  Apgar,  when  he  knew,  or  should  have  known,  of  his  dangerous 

land  vicious  character.     The  same  principle  which  absolves  the  city 

jfrom  liability  for  Apgar's  tortious  act  applies  to   the  act  of  the 

mayor.     The   mayor   was    simply   exercising   a   discretion   vested    in 

iliim  by  virtue  of  his  office  and  the  laws  of  the  state.     If  the  ap- 

ipointment  was  a  wrongful  act,  which  resulted  in  injury  to  the  ap- 

Jpellant,  the  burdens  of  liability  cannot  be  cast  upon  the  inhabitants 

jind  taxpayers   of  the  city.     A  municipal   corporation,   while   simply 

iixercising  its  police  powers,  is  not  liable  for  the  acts  of  its  officers 

!n  the  violation  of  the  laws  of  the  state  and  in  excess  of  the  legal  pow- 

[irs  of  the  city.     Dill.   Mun.  Corp.  §§  950,   9G8 ;    Town  of  Odell  v. 

pchroeder,  58  111.  353;   City  of  Chicago  v.  Turner,  80  111.  4VJ;    Wil- 

i 
I 
I 


356  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part   2 

COX  V.  City  of  Chicago,  107  111.  334,  47  Am.  Rep.  434;  Blake  v. 
City  of  Pontiac,  49  111.  App.  543. 

"Appellant  further  contends  that  the  placing  of  Apgar  in  the 
street  and  in  control  of  it  was  the  creation  of  a  nuisance,  upon  whicli 
ground  it  is  liable — in  fact,  his  chief  contention  is  that  he  became 
thereby  an  obstruction  in  the  street — and  cites  a  long  list  of  authori- 
ties in  support  of  the  proposition  that  it  is  the  duty  of  a  city  to  keep 
its  streets  free  from  obstructions,  and  a  failure  in  that  regard  will 
render  it  liable  for  injuries  caused  thereby.  We  cannot  regard  a 
human  being,  in  the  exercise  of  police  powers,  as  an  obstruction, 
in  the  sense  contemplated  by  the  unquestioned  doctrine  announced 
by  those  cases.  We  think  the  court  properly  sustained  the  demurrer 
to  the  declaration." 

After  a  careful  consideration  of  the  case,  we  have  reached  the  same 
conclusion  as  that  arrived  at  by  the  courts  below ;  and,  concurring 
in  the  views  of  the  Appellate  Court,  we  see  no  necessity  for  another 
opinion  on  this  appeal,  but  adopt  the  one  above  set  out  as  the  opin- 
ion of  this  court  in  the  case.  The  judgment  of  the  Appellate  Court 
is  affirmed. 

Judgment  affirmed."' ' 


CITY  OF  SAN  ANTONIO  v.  WHITE. 
(Court  of  Civil  Appeals  of  Texas.     1900.     57  S.  W.  858.) 

Action  by  George  M.  White  against  the  City  of  San  Antonio. 
From  a  judgment  for  plaintiff,  defendant  appeals.     Reversed. 

James,  C.  J.  Plaintiff,  George  M.  White,  was  engaged  in  run- 
ning the  Maverick  Hotel,  in  San  Antonio,  about  September,  1897. 
Texas  had  quarantined  against  New  Orleans  on  account  of  yellow 
fever.  A  theatrical  troupe  left  New  Orleans  on  the  last  train  before 
this  quarantine  was  declared  and  came  direct  to  San  Antonio.  Sev- 
eral (five  or  six)  of  the  members  of  this  troupe  registered  at  the 
Maverick  Hotel  on  the  morning  of  September  7th  for  breakfast,  the 
others  taking  quarters  elsewhere  in  the  city.  In  the  early  afternoon 
the  troupe  collected  at  the  opera  house  for  a  rehearsal,  and  late 
in  the  afternoon  they,  17  or  more  in  all,  were,  under  direction  of 
the  mayor  and  city  physician,  taken  charge  of  by  police,  and  taken 
in  a  body  to  the  Maverick  Hotel,  where,  without  the  consent  and 
over  the  protest  of  plaintiff  and  his  wife,  they  were  quartered  as  yel- 
low fever  suspects,  on  the  third  floor  of  the  hotel,  and  there  de- 
tained  by  police  officers  for  six  days,  the  officers  using  the  stairways. 
The  effect  of  this  action  upon  plaintift"s  hotel  business  was  to  convert 

55  Accord:  Buttrick  v.  Lowell,  1  Allen  (Mass.)  172,  79  Am.  Dee.  721  (18G1)  ; 
Mcllhennev  v.  Wilmington,  127  N.  C.  146,  37  S.  E.  187,  50  L.  II.  A.  470 
(1900)  ;  Levin  v.  Burlington,  129  N.  C.  1S4,  39  S.  E.  822,  55  L.  R.  A.  390 
(1901). 


Ch,  7)  ACTIONS   TO   RECOVER   DAMAGES   OR   MONEY.  357 

it  from  a  profitable  business  to  a  losing  one,  until  June   following, 
when  he  went  out  of  the  business  by  making  a  deed  of  trust. 

The  answer  of  defendant  alleged  that  the  city,  under  its  charter, 
had  power  to  make  regulations  to  secure  the  general  health  of  the 
city,  to  make  regulations  to  prevent  the  introduction  of  contagious 
diseases  into  the  city,  to  make  quarantine  laws  for  that  purpose,  and 
to  enforce  the  same,  and  to  make  all  ordinances  and  regulations  to 
prevent  the  spread  of  any  contagious  diseases  within  the  city  limits,, 
and  to  establish  hospitals  and  pest  houses;  also  that  the  city  council 
had  ordained  that,  for  the  purpose  of  preventing  the  introduction  ofy 
any  contagious  disease  within  the  city  limits,  the  mayor  should  be 
authorized  by  proclamation,  and  it  was  made  his  duty,  whenever  the 
board  of  health  should  deem  it  necessary,  to  establish  quarantine 
against  all  persons  coming  to  the  city  who  were  liable  to  cause  the  in- 
troduction or  spread  of  such  contagious  disease,  as  well  as  the  iso- 
lation and  quarantine  of  all  persons  within  the  city,  such  quaran- 
tine to  be  carried  into  effect  in  accordance  with  the  rules  and  regula- 
tions established  by  the  board  of  health ;  and  further  ordained  that 
the  mayor  and  board  of  health  should  have  power  to  employ  guards 
and  assistants  when  necessary,  and  to  establish  quarantine  stations, 
pest  houses,  and  hospitals  for  all  persons  detained  under  quarantine 
regulations.  It  was  alleged  by  defendant  that  the  mayor  and  board 
of  health,  by  virtue  of  said  ordinance,  for  the  purpose  of  preventing 
the  introduction  into  the  city  of  yellow  fever,  did,  with  plaintiff's 
consent,  temporarily  isolate  and  quarantine  the  said  persons  at  plain- 
tiff's hotel,  to  the  end  that  such  suspected  persons  should  not  mingle 
with  the  people  at  large  and  endanger  the  public  health,  and  that  all 
the  acts  of  its  mayor  and  board  of  health  were  done  and  performed 
in  good  faith,  and  for  the  public  good,  and  such  acts  were  due  in 
respect  to  governmental  functions  for  which  defendant  is  not  liable. 
The  mayor  and  health  ofificer  were  dismissed  from  the  suit,  and  the 
city  remained  the  sole  defendant. 

The  second  assignment  is  that  the  court  should  have  sustained  de- 
fendant's special  exception  to  the  petition,  upon  the  ground  that  the 
city  was  not  liable  for  the  acts  of  its  co-defendants,  the  mayor  and 
health  officer,  said  acts  not  being  acts  of  the  city;  there  being  no  al- 
legation that  such  acts  were  authorized  by  the  city  council.  The  al- 
legation was  that  the  city,  by  and  through  its  mayor  and  health 
officer,  committed  the  acts  complained  of.  It  is  probable  that  this  ' 
was  sufficient  allegation  that  the  city  caused  the  acts  to  be  done. 
We  deem  it  more  advisable  to  pass  upon  the  liability  of  the  city  in 
the  light  of  the  evidence. 

The  acts  detailed  above,  which  are  as  the  jury  must  have  found 
the  facts  to  be,  constituted  an  unwarrantable  trespass,  for  which 
the  mayor  and  health  officer  were  probably  liable.  A  fact  that  is 
essential  to  the  city's  liability  in  cases  of  this  kind  is  wanting,  viz. 
the  fact  that  the  city  was,  or  has  made  itself,  a  party  to  the  trespass. 


358  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part   2 

There  is  absolutely  no  evidence  from  which  it  can  be  found  that  the 
city  directed,  or  has  ratified,  the  proceeding,  A  city  is  not  Hable  I 
for  acts  of  its  health  officers,  or  for  malfeasances  or  misfeasances, 
in  the  line  of  their  public  duties.  Shear.  &  R.  Neg-.  §  266 ;  Bates  v. 
City  of  Houston,  14  Tex.  Civ.  App.  287,  37  S.  W.  383,  where  the 
subject  is  discussed  with  ample  citation  of  authorities;  Gilboy  v. 
City  of  Detroit,  115  Mich.  121,  73  N.  W.  128.  The  last  case  goes 
so  far  as  to  hold  that  the  city  would,  in  no  event,  be  liable  for  such 
acts.  We  are  of  opinion  that  at  least,  without  some  testimony  con- 
necting the  corporation  with  the  transaction  complained  of,  either  by 
showing  its  previous  direction,  or  participation  therein,  or  ratifica- 
tion, there  is  no  basis  for  any  claim  of  liability  against  it.  In  the 
cases  of  City  of  San  Antonio  v.  Mackey,  14  Tex.  Civ.  App.  210,  36 
S.  W.  760,  and  City  of  Dallas  v.  Allen  (Tex.  Civ.  App.)  40  S.  W. 
324,  decided  by  this  court,  the  liability  of  the  city  existed  by  reason 
of  the  direction  or  participation  of  the  cities  themselves. 

The  ground  of  liability  upon  which  appellant  chiefly  relies  is  that 
the  act  complained  of  amounted  to  an  appropriation  of  property  for 
public  uses,  and  that  the  city  is  bound  to  compensate  plaintiff  by  force 
of  the  constitutional  guaranty.  We  are  of  opinion  that  a  city  could 
not,  under  the  guise  of  exercising  a  strictly  governmental  power, 
evade  this  constitutional  provision.  But  it  is  clear  that  the  act  must 
be  the  act  of  the  city  in  such  a  case.  A  city  cannot  be  held  liable 
for  property  taken  or  appropriated  by  a  trespass  with  which  it  has 
no  connection  at  all.  The  act  complained  of  here  was  done  by  the 
mayor  and  health  officer,  and  the  city  is  not  shown  to  have  directed  it, 
nor  adopted  it  as  its  own.  Dooley  v.  City  of  Kansas,  82  Mo.  444, 
52  Am.  Rep.  380.  We  conclude  that  the  fifth  assignment  was  well 
taken,  viz.  error  in  refusing  to  charge  the  jury  that  the  city  was 
not  liable  for  any  wrong  or  trespass  committed  by  its  mayor,  city 
physician,  or  police  officers,  and  therefore  to  return  a  verdict  for  de- 
fendant. 

Reversed  and  remanded. 


NEW  YORK  CITY  CHARTER  (LAWS  1901,  c.  466)  §  1196. 

No  member,  officer  or  agents  of  said  department  of  health,  and  no 
■person  or  persons  other  than  the  department  of  health  or  the  city  it- 
self shall  be  sued  or  held  to  liability  for  any  act  done  or  omitted  by 
either  person  aforesaid,  in  good  faith,  and  with  ordinary  discretion, 
on  behalf  or  under  said  department,  or  pursuant  to  its  regulations,  or- 
dinances or  health  laws.  And  any  person  whose  property  may  have 
been  unjustly  or  illegally  destroyed  or  injured,  pursuant  to  any  order, 
regulation  or  ordinance,  or  action  of  said  department  of  health  or  its 
officers,  for  which  no  personal  liability  may  exist  as  aforesaid,  may 
obtain  a  proper  action  against  the  city  for  the  recovery  of  the  proper 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  359 

compensation  or  damage.  Every  such  suit  must  be  brought  within 
six  months  after  the  case  of  action  arose,  and  the  recovery  shall  be 
limited  to  the  damages  suffered. 


SECTION  40.— SAME— ON  IMPLIED   CONTRACT 


LINCOLN  V.  CITY  OF  WORCESTER. 
(Supreme  Judicial  Court  of  Massachusetts,  1851.     8  Cush.  55.) 

SHAW,  C.  J.^®  This  is  an  action  for  money  had  and  received,  to 
recover  back  money  paid  by  the  plaintiff  to  the  tax  collector,  on  the 
ground  that  the  city,  by  their  collector  and  treasurer,  have  received  a 
sum  of  money  which  they  have  no  just  right  to  retain.  The  ground 
upon  which  this  claim  is  made  is  that  the  assessors  were  chargeable 
with  various  mistakes  and  irregularities,  amounting  to  violations  of 
law,  in  making  their  assessment  on  his  property,  by  misdescription, 
by  classing  together  lots  and  parcels  of  land  which  ought  to  have 
been  taxed  separately,  and  by  separating  into  different  parcels  estates 
which  should  have  been  combined  into  one  parcel  and  taxed  together ; 
also  that,  in  regard  to  certain  personal  property,  the  plaintiff  has  been 
taxed  for  shares  for  which  he  was  not  legally  taxable. 

The  first  and  great  question  to  be  considered,  before  we  can  begin 
to  inquire  into  these  irregularities,  is  whether  assumpsit  for  money 
had  and  received  will  lie  against  the  city,  provided  such  irregularities 
are  shown,  and  if  the  assessors  acted  contrary  to  the  directions  of  law, 
in  the  details  of  their  proceedings  in  the  assessment  of  taxes.  There 
is  another  mode  of  proceeding  provided  by  law  (by  application  for 
abatement  and  by  appeal),  well  adapted  to  correct  all  errors  and  mis- 
takes, to  relieve  the  party  taxed  in  regard  to  all  those  particulars  in 
which  the  irregular  proceeding  can  act  injuriously  upon  him,  and  to 
confirm  and  hold  good  that  which  upon  revision  appears  regular  and 
conformable  to  law.  When  assumpsit  lies  to  recover  back  money 
paid,  it  proceeds  on  the  ground  that  the  tax  is  void,  that  the  plaintiff' 
has  paid  it  upon  compulsion,  and  that  the  city,  into^whose  treasury  it 
has  passed,  in  equity  and  good  conscience  cannot  retain  it.  It  follows 
that  if  the  whole  proceeding  is  void,  and  the  plaintiff  can  recover  his 
money  back  on  that  ground,  it  being  too  late  to  assess  the  taxes  of 
a  past  year  again,  the  plaintiff  will  avoid  paying  those  sums,  which 
it  is  conceded  were  well  assessed,  and  which  he  is  bound  equitably, 
as  well  as  legally,  to  pay. 

The  question  then  may  be  asked,  why  has  the  action  for  money 
had  and  received  been  sustained  in  any  case  ?    To  this  question  it  may 

58  Only  a  portion  of  the  opinion  of  Shaw,  C.  J.,  Is  printed. 


360  RELIEF   AGAINST   ADMINISTKATIVB  ACTION.  (Part    2 

be  proper  to  offer  an  answer,  and  attempt  to  point  out  the  distinction 
upon  which  the  cases  rest. 

We  are  incHned  to  think  that  the  maintenance  of  an  action  to  re- 
cover back  money  paid  for  a  tax  (except  perhaps  in  case  of  a  parish 
tax,  in  favor  of  a  person  of  another  denomination,  under  the  provi- 
sions of  the  Constitution  of  Massachusetts — Murray  v.  First  Parish 
in  Gloucester,  2  Dane,  Abr.  330,  and  other  cases  there  cited),  is  of 
comparatively  recent  origin. 

The  common  course  was,  it  is  believed,  to  bring  trespass  against  the 
assessors,  in  all  cases  where  the  plaintiff  intended  to  hold  that  he  was 
not  liable  at  all,  and  that  the  tax  was  wholly  void.  It  was  not  brought 
against  the  collector,  because  he  was  justified  by  his  warrant  from  a 
tribunal  of  competent  jurisdiction ;  but  against  the  assessors.  It  pro- 
ceeded on  the  ground  that  as  in  trespass  all  are  principals,  including 
those  who  command  an  illegal  act  to  be  done,  and  as  the  assessors  had 
issued  a  warrant  to  a  subordinate  executive  officer  commanding  him 
to  levy  a  tax  upon  the  plaintiff,  in  a  case  where  they  had  no  authority, 
and  to  take  his  property  or  person  in  case  of  nonpayment,  the  service 
of  such  a  warrant  was  an  illegal  act,  done  by  their  command,  and  was 
in  theory  of  law  a  trespass,  for  which  an  action  would  lie. 

In  the  case  of  Stetson  v.  Kempton,  13  Mass.  272,  17  Am.  Dec.  14"), 
decided  in  1816,  it  was  held  that  trespass  against  the  assessors  would 
lie,  although  the  sum  assessed  on  the  plaintiff  was  laid  and  assessed  by 
a  vote  of  the  town,  to  raise  money  for  the  defense  of  the  town  against 
a  public  enemy,  such  being  a  purpose  for  which  the  town,  as  a  corpo- 
ration, had  no  authority  to  raise  money  by  taxation.  The  objection 
was  there  taken,  and  the  force  of  it  was  to  a  certain  extent  admitted  ; 
but  it  was  held  not  to  be  a  good  defense,  because,  as  the  court  said, 
"if  the  assessors  are  not  liable  to  an  action  for  causing  an  arrest,  or 
the  seizure  of  property,  for  the  nonpayment  of  an  illegal  tax,  it  is 
difficult  to  find  any  remedy  for  an  injured  citizen  in  cases  of  this 
nature."  They  add,  hypothetically,  that  "if  an  action  would  lie  against 
the  town,  it  could  only  be  for  the  money  actually  received  into  the 
treasury."  That  was  a  case,  it  will  be  observed,  in  which  the  plain- 
tiff's property  had  been  actually  taken  on  a  warrant  of  distress. 

Here,  perhaps,  is  the  first  intimation  that  an  action  may  be  main- 
tained against  the  town,  and  of  the  principle  on  which  it  can  be  main- 
tained. It  is  that  money  has  been  actually  brought  into  their  treasury 
by  their  unauthorized,  and  of  course  illegal,  act,  which  in  equity  and 
good  conscience  they  cannot  retain ;  and  this,  not  for  the  damages 
caused  by  the  seizure  and  sacrifice  of  property  distrained,  and  not  for 
the  expenses  incurred,  but  simply  for  the  money,  which  they  have 
actually  received  without  right.  Such  a  remedy,  if  it  exist  at  all,  can 
upon  principle  apply  only  to  a  case  where  a  town  or  city  levy  money 
for  their  own  use  without  authority,  and  not  where  they  or  their  offi- 
cers assess  and  collect  money  for  the  state,  county,  or  school  district. 

In  1824,  an  act  was  passed  (St.  1823,  c.  138,  §  5)  having  an  impor- 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  36] 

tant  bearing  on  this  subject.  It  provides  that  the  assessors  of  cities, 
towns,  districts,  parishes,  or  rehgioiis  societies  shall  not  be  made  re- 
sponsible for  the  assessment  of  any  tax,  when  thereto  required  by  the 
constituted  authorities  thereof;  but  the  liability,  if  any,  shall  rest  sole- 
ly with  said  city,  etc.,  and  the  assessors  shall  be  responsible  only  for 
their  own  integrity  and  fidelity.  This  provision  was  extended  to  as- 
sessments on  school  districts  by  St.  1833,  c.  166,  and  was  re-enacted 
in  Rev.  St.  c.  7,  §  U. 

The  first  case,  we  believe,  in  which  an  action  for  money  had  and  re- 
ceived, to  recover  back  a  tax  illegally  assessed,  was  maintained,  was 
that  of  Sumner  v.  First  Parish  in  Dorchester,  4  Pick.  361.  That  was 
an  action  to  recover  back  a  parish  tax,  brought  by  one  who  was  not  a 
member,  and  not  liable  to  taxation,  so  that  the  tax  was  wholly  unu- 
thorized  as  against  him,  and  void.  The  court  refer  to  the  statute  of 
1823,  taking  away  the  remedy  against  assessors,  so  that,  if  this  action 
would  not  lie,  the  party  illegally  taxed  would  be  without  remedy.  The 
court  further  added :  "Upon  common  principles,  the  corporation  hav- 
ing received  the  money  of  the  plaintiff,  to  which  they  have  no  right, 
and  placed  it  in  their  treasury,  must  be  liable  to  refund  it  in  this  ac- 
tion." 

This  was  probably  the  basis  upon  which  many  actions  have  been 
since  brought  to  recover  back  money,  where  the  authority  on  which  it 
is  levied  is  wholly  void. 

But  it  is  held  that  this  rule  cannot  apply  to  voluntary  payments. 
but  only  in  cases  where  a  party  has  been  compelled  to  pay,  by  that 
species  of  compulsion  which  the  law  considers  duress.  The  princi- 
ple is  fully  stated  and  explained  in  former  cases,  and  is  this :  That  a 
warrant  of  distress  is  in  the  nature  of  an  execution  against  a  person. 
where  there  has  been  no  judgment,  and  no  opportunity  to  plead  or 
answer,  and  therefore,  if  he  refuses  to  pay,  and  payment  is  insisted 
upon,  and  that  on  pain  of  immediate  arrest  or  seizure  of  goods,  the 
payment  cannot  be  deemed  voluntary  ;  and  if  he  is  not  liable  to  tax- 
ation, such  a  menace  is  duress. ^^  If,  therefore,  he  pays,  with  or  with- 
out protest,  to  avoid  such  duress,  he  may  recover  the  money  back,  if 
he  is  not  liable.  Preston  v.  Boston,  12  Pick.  7 ;  Boston  &  Sandwich 
Glass  Co.  v.  Boston,  4  Mete.  181.  But  these  cases  go  on  the  assump- 
tion that  the  tax  was  wholly  unauthorized  and  the  assessment,  there- 
fore, not  irregular  only,  but  void. 

One  case  has  been  cited,  wdiich  is  supposed  to  have  a  contrary  bear- 
'  ing,  and  to  hold  that  part  of  the  tax  assessed  on  a  party,  for  which  he 
'  is  not  liable,  may  be  recovered  back  of  the  town.  Torrey  v.  Millbury, 
I  21  Pick.  64.  Perhaps  in  this  case  the  point  was  not  so  much  consid- 
j  ered  as  it  would  have  been  but  for  the  express  admission,  by  the  coun- 
'  sel  for  the  defendants,  that  the  plaintiff  was  entitled  to  recover  back 
I  his  proportion  of  $100,  which  the  town  had  no  authority  to  levy,  and 
1 

!       5  7  See  Rev.  Laws  Mass.  c.  13,  §  86,  giving  to  a  protest  the  same  effect  as  to 
i    duress. 


362  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

for  which,  tlicrefore,  he  was  not  hable  to  be  assessed;  and  it  was  this 
proportion  for  which  in  fact  he  had  judgment.  Perhaps,  were  such  a 
case  again  under  consideration,  it  might  require  a  careful  revision ;  but 
the  case  was  decided  upon  the  ground  that  the  vote  for  raising  the  $100 
was  unauthorized,  and  without  warrant  of  law,  and  that  the  tax  there- 
fore was  wholly  void.  We  are  not  aware  that  any  decided  case  has 
given  sanction  to  the  principle  that  assumpsit  against  the  town  or  city 
will  lie  to  recover  back  money  on  the  ground  of  any  irregularity,  error 
or  mistake,  in  fact  or  in  law,  in  the  mode  of  making  the  assessment. 
On  the  contrary,  we  think  it  is  now  definitely  settled,  by  a  series  of  de- 
cisions, that  in  such  case  the  party's  oiily_jemedy  is  by  application  to 
J     .  the  assessors  for  abatement.     Rev.  St.  c.  7,  §  37.     If  the  party  obtain 

^  jA' ,  no  satisfactory  relief  there,  he  may  complain  to  the  county  commis- 
^^  '^  sioners  for  a  revision.  Section  39.  And  it  has  recently  been  decided 
that  if  there  be  any  error  or  mistake,  in  matter  of  law,  in  the  proceed- 
uigs  of  the  commissioners,  a  writ  of  certiorari  from  this  court  wnlHie 
^o  correct  them.  Newburyport  v.  County  Commissioners,  12  IMetc. 
211. 

Here  is  an  easy,  direct,  simple  and  practical  remedy  given  by  law, 
adequate  and  properly  adapted  to  the  case,  to  be  pursued  promptly, 
under  proper  limitations  as  to  time  and  course  of  proceeding,  before 
tribunals  specially  constituted,  and  furnished  with  all  the  means  of 
affording  prompt  and  efficient  relief  against  all  errors,  of  fact  or  law, 
by  which  a  party  can  be  injured  by  wrong  taxation.     *     *     *  ^^ 

5  8  See  Swift  v.  I  Poughkeepsie,  37  N.  T.  511  (18GS) ;  Newman  v.  Supervisors 
of  Livingston  Co.,  45  N.  Y.  676  (1871)  ;  Board  of  Supervisors  of  Steplienson 
Co.  V.  Manny,  56  111.  160  (1870);  Spring  v.  Hyde  Parle,  137  Mass.  554,  50 
Am.  Rep.  334  (1884). 

See  Falls  v.  City  of  Cairo,  .58  III.  403,  406  (1871):  "The  precept,  which  was 
in  the  hands  of  the  officer  at  the  time  these  assessments  were  paid,  did  not 
authorize  him  to  levy  upon  the  goods  and  chattels  of  the  appellant,  but 
directed  him  merely  to  make  sale  of  the  lots  to  satisfy  the  assessments. 
In  Bradford  v.  City  of  Chicago,  25  111.  411,  it  was  held  that  the  payment 
of  an  assessment,  made  to  a  collector  of  taxes  while  having  in  his  hands 
a  warrant  to  levy  and  collect  the  amount  of  the  assessment  of  the  goods 
and  chattels  of  the  owner,  might  be  considered  compulsory,  and  made  un- 
der such  circumstances  as  would  authorize  the  party  paying  the  money 
to  recover  back  the  same,  if  the  assessment  was  illegally  made.  But  it 
was  decided  in  Stover  v.  Mitchell,  45  111.  213,  that  a  levy  of  an  execution 
upon  one's  land  did  not  make  a  case  of  such  duress  or  compulsion  that  a 
payment  made  to  prevent  the  sale  of  the  land  under  the  execution  could 
be  recovered  back  as  a  compulsory  payment.  It  was  held  to  be  a  voluntary 
payment,  and  not  one  made  under  duress;  and  it  is  there  said:  'It  is 
insisted  that  the  levy  of  the  execution  on  Stover's  land  was  the  exercise  of 
such  compulsion  as  to  interfere  with  Stover's  freedom  of  action.  No  case 
is  cited  going  to  this  extent,  and  we  venture  to  say  none  can  be  found.  In 
order  to  render  such  a  payment  compulsory,  such  a  pressure  must  be  brought 
to  bear  upon  the  person  paying  as  to  interfere  in  some  way  with  the  free 
enjoyment  of  his  rights  of  person  or  property'— citing  Bradford  v.  City 
of  Chicago,  supra,  and  Elston  v.  City  of  Chicago,  40  111.  514,  89  Am.  Dec. 
361.  There  was  here  no  interference  with  the  plaintiff's  free  enjoyment 
of  his  property,  and  there  would  not  have  been,  by  making  sale  of  it  under 
the  precept.  Such  sale  would  not  have  disturbed  his  possession  of  the 
property.     He  would  then  have  had  two  years   to   redeem   from   the  sale, 


Ch.  7)  ACTIONS  TO   RECOVER   DAMAGES  OR  MONEY.  363 

SECTION  41.— ACTION  AGAINST  STATE  OR  GOVERN- 
MENT 


ACT  ILL.  MARCH  23,  1819. 
(Laws  111.  1819,  p.  1S4.) 
An  act  directing  the  mode  of  bringing-  suits,  by  and  against  the  state, 
counties,   townships,  and   other   corporate  bodies   and    for   other 
purposes. 
Section  1.  It  shall  and  may  be  lawful   for  the  Auditor  of  Public 
Accounts  for  the  state  of  Illinois  to  sue  for  any  demand  which  the  peo- 
ple of  the  state  may  have  a  right  to  claim ;   and  to  be  sued  for  any  de- 
mand against  the  people  of  the  state ;   and  to  sue  and  be  sued,  to  plead 
and  be  impleaded,  to  answer  and  be  answered,  to  defend  and  be  de- 
fended, in  any  court  of  record,  or  other  place  where  justice  shall  be 
judicially  administered,  in  the  name  of  the  Auditor  of  Public  Accounts, 
for  the  people  of  the  state  of  Illinois.     *     *     * 

Sec.  5.  When  judgment  shall  be  rendered  against  the  Auditor  of 
Public  Accounts  for  the  state  of  Illinois,  [that]  it  shall  be  his  duty,  by 
his  warrant,  to  draw  upon  the  State  Treasurer  for  the  amount  of  such 
judgment,  and  costs,  to  the  time  of  the  rendition  thereof,  and  for  no 
more.     And  it  shall  be  the  duty  of  the  Treasurer  to  pay  the  same  out 

and  if.  at  the  end  of  that  time,  the  purchaser  had  obtained  his  tax  deed, 
and  brought  his  action  of  ejectment  for  the  recovery  of  the  possession,  tlae 
illegality  of  the  assessments  could  have  been  shown  in  defense,  and  the 
recovery  of  possession  defeated ;  or,  had  the  plaintiff  desired  to  remove 
any  cloud  which  might  be  brought  upon  his  title  by  such  a  sale,  he  could 
have  had  his  remedy  for  that  purpose.  It  is  very  unlike  the  case  of  the 
payment  of  money,  made  to  avoid  the  seizure  of  goods  or  to  gain  the  pos- 
session of  them,  where  there  may  be  a  pressing  necessity  for  their  im- 
mediate use,  and,  being  of  a  movable  and  perishable  character,  any  legal 
remedy  might  be  inadequate  for  full  protection.  The  reasons  upou  which 
it  is  held  that  when  a  party  is  compelled,  by  duresss  of  his  person  or  goods, 
to  pay  money  for  which  he  is  not  liable,  the  payment  is  not  voluntary, 
but  compulsory,  and  that  he  may  rescue  himself  from  such  duress  by  pay- 
ment of  the  money,  and  afterwards,  on  proof  of  the  fact,  recover  it  back, 
do  not  apply  in  the  case  of  real  estate  threatened  with  such  action,  as  in 
the  present  case.  And  we  think  the  payment  of  these  assessments  was 
not  made  under  such  circumstances  of  constraint  and  compulsion  as  to 
except  it  from  the  oiDeration  of  the  legal  principle  that  if  a  party,  with 
full  knowledge  of  all  the  facts  of  the  case,  voluntarily  pays  money  in  sat- 
isfaction or  discharge  of  a  demand  unjustly  made  on  him,  he  cannot  after- 
wards recover  back   the  money." 

Accord:  Detroit  v.  Martin,  34  Mich.  170,  22  Am.  Rep.  512  (187G) :  Lan- 
born  V.  County  Commissioners,  97  U.  S.  181,  186,  24  K  Ed.  926  (1877). 

See  .Etna  Insurance  Co.  v.  Mayor,  etc.,  of  New  York,  153  N.  Y.  331, 
340,  47  N.  E.  593,  .594  (1897):  "We  are  also  of  the  opinion  that  the  pay- 
ment of  the  taxes  for  1887  and  ISSS.  under  the  circumstances  disclosed  by 
the  evidence,  was  not  voluntary,  and  hence  the  amount  thereof  may  be 
recovered  in  this  action.  At  the  time  these  payments  were  made,  sec- 
tion 314  of  chapter  409  of  the  Laws  of  1882  was  in  force.  That  section 
provides  that  a  tax  upon  the  shares  of  a   bank  organized  under  the  laws 


364 


RELIEF   AGAINST   ADMINISTRATIVE   ACTION. 


(Part  2 


of  any  monies  in  the  treasury  not  otherwise  appropriated.  *  *  *' 
Provided,  that  if  the  Auditor,  commissioners,  or  trustees,  as  aforesaidj 
fail  or  refuse  to  give  such  warrant,  as  aforesaid,  upon  request,  execu- 
tion may  issue  against  either  of  them,  for  the  amount  of  such  judg- 
ment, in  his  or  their  natural  and  private  capacity,  and  be  collected  ii 
the  same  manner,  except  that  no  replevy  shall  be  allowed  upon  sucl 
execution,  as  though  it  had  been  recovered  against  him  or  them  in  his| 
or  their  natural  and  private  capacity.^** 


ACT  ILL.  JAN.  3.  LS29. 

(Rev.    Laws    111.    lS32-:!;3.    p.    593.) 

An  act  directing  the  mocje  of  bringing  suits,  by  or  against  the  state. 

Section  1.  It  shall  and  may  be  lawful  for  the  Auditor  of  Public  Ac- 
counts of  the  state  of  Illinois  to  sue  for  any  demand  which  the  peopk 
of  the  state  may  have  a  right  to  claim,  and  to  be  sued  and  to  sue,  tc 
plead  and  to  be  impleaded,  to  answer  and  be  answered,  to  defend  and) 
to  be  defended,  in  any  court  of  record,  or  other  place,  where  justice 
shall  be  judicially  administered,  in  the  name  of  the  Auditor  of  Pub- 


of  the  state,  or  of  the  United   States,  shall  be  and  remain   a   lien   thereonj 
from    the    day   when    the   property    was   assessed,    and,   if   transferred   after] 
that  day.   the  transfer  shall   be  subject  to  such  lien.     As  this   tax  becamej 
and   remained   a   lien   upon   the   plaintiff's   bank    stock,   even    after   a   trans 
fer,    it   deprived    it    of   an    essential    element    of    its    ownership    and    of    its! 
right   to    transfer   it.      That   t)eing  the   effect  of  the   imposition   of  the  tax,] 
we  think   it  amounted  to   such    an   impounding  or  duress   of  the  plaintiff's  J 
property  as  to  render  the  payment  so  far   involuntary   as  to   authorize  ani 
action    for    tlie    recovery    of    the    money    thus    wrongfully    received    by    the 
defendant.     The  plaintiff  could  only  establish  its  right  to  a  full  enjoyment  j 
of   its  property   by    proof  of   the  facts   which    entitled   it   to    an    exemption  | 
under  the  statute  of  188G.   in   an   action   or   proceeding   instituted   for   that  j 
purpose,    or   by   payment   of  the  tax.     The  defendant   Iiaving,   by   its   unau- 
thorized  act,   placed   the   plaintiff   in   that   position,   it   cannot   relieve  itself  j 
from  a  liability  to  refund   the  amount   it  thus  wrongfully   received   by  as- 
serting  that   the  payment   was    a    voluntary   one.   or   by    claiming    that  the] 
plaintiff   might    have    pursued    some    other    remedy    to    relieve   its    property 
from  the  lien  thus  established.     The  payment  was  necessary  to  relieve  the] 
plaintiff's  property  from  the  lien  to  which  it  was  made  subject  by  the  wrong- 
ful acts  of  the  defendant's  officers,  unless  it  instituted  a   proceeding  to  es- 
tablish the  invalidity  of  the  tax.    The  plaintiff,  to  enforce  its  rights,  elected] 
to  pay  the  tax  and  thus  relieve  its  property  from  such  lien,  and  then  to  in- 
stitute an  action  to  recover  the  amount  it  was  obliged  to  pay,  instead  of  com- 
mencing a  proceeding  to  set  aside  the  tax.     We  think  the  defendant  is  not  in , 
a  position  to  complain  because  the  plaintiff'  elected  to  pursue  the  former  in- 
stead of  the  latter  remedy,  and  that  the  payment  cannot  be  held  to  be  so 
far  voluntary  as  to  deprive  the  plaintiff  of  its  right  to  recover  the  amount  of 
taxes  thus  wrongfully  levied  and  received  by  the  defendant." 

Accord:    Stephan  v.  Daniels,  27  Ohio  St.  527  (1875). 

59  For  earlier  legislation,  see  Act  Va.  1778  (9  Hening's  St.  p.  536),  and 
Commonwealth  v.  Beaumarchais,  3  Call  (Va.)  122-180  (1801);  also  Act  Pa. 
March  30.  1811  (Dunlop's  Laws  1700^1849,  p.  287,  c.  207),  and  Fitter  v.  Com., 
31  Pa.  406  (1858). 

See,  also,  Blackstone's  Commentaries,  III,  pp.  254-257,  as  to  petition  of' 
right. 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  365 

lie  Accounts,  for  the  people  of  the  state  of  Illinois :  Provided,  that  the 
Auditor  shall  not  be  liable  to  be  sued  in  any  other  county  than  that  in 
which  the  seat  of  government  is  situated.  And  the  Attorney  General 
of  this  state  shall  prosecute  and  defend  all  suits  brought  by  or  against 
the  Auditor  of  Public  Accounts,  as  is  prescribed  by  law.  From  all 
judgments,  so  rendered,  appeals  may  be  taken  to  the  Supreme  Court, 
and  it  shall  be  the  duty  of  the  Auditor  to  take  such  appeal,  if  in  his 
opinion  justice  has  not  been  done  in  the  court  where  such  judgment 
has  been  rendered;  nor  shall  any  judgment  against  the  Auditor,  in 
his  representative  capacity,  bind  him  personally,  or  be  conclusive  upon 
the  state,  until  the  same  shall  be  examined  by  the  General  Assembly. 
In  cases  of  appeals  by  the  Auditor,  he  shall  not  be  required  to  give 
bond,  or  security,  as  in  other  cases. 

Sec,  2.  When  judgment  shall  be  rendered  against  the  Auditor  of 
Public  Accounts  for  the  state  of  Illinois,  it  shall  be  the  duty  to  forward 
a  copy  of  such  judgment,  and  proceedings  thereon,  to  the  next  Gener- 
al Assembly,  and  if  approved  by  the  same,  an  appropriation  shall  be 
made  to  satisfy  the  same,  or  such  part  thereof  as  said  general  assem- 
bly may  deem  just. 

Sec.  3.  The  act  entitled  "An  act  directing  the  mode  of  bringing 
suits,  by  and  against  the  state,  counties,  townships,  and  ottier  corpo- 
rate bodies,  and  for  other  purposes,"  approved  March  23,  1819,  is 
hereby  repealed. 

This  act  to  be  in  force  from  and  after  the  first  day  of  June  next.'''' 


CONST.  ILL.  1818,  art.  3,  §  3L 

The  General  Assembly  shall  direct  by  law  in  what  manner  suits  may 
be  brought  against  the  state.f 


CONST.  ILL.  1870,  art.  4,  §  26. 

The  state  of  Illinois  shall  never  be  made  defendant  in  any  court  of 
law  or  equity. 


ACT  ILL.  MAY  29,  1877. 

(Laws  111.  1S77,  p.  64.) 

An  act  to  create  a  Commission  of  Claims,  and  to  prescribe  its  powers 

and  duties.     In  force  July  1,  1877. 

Section  1.  There  shall  be,  and  hereby  is  created  and  constituted  a 

commission  to  be  called  the  "Commission  of  Claims,"  which  shall  be 

composed  of  one  of  the  judges  of  the  Supreme  Court,  who  shall  be 

00  This  act  was  repealed  by  Rev.  St.  1845,  p.  464,  c.  90. 
t  No  such  law  appears  to  have  been  enacted. 


366  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

president  of  said  commission,  and  two  judges  of  the  circuit  courts  of 
this  state.     *     *     * 

Sec.  2.  It  shall  be  the  duty  of  said  commission  to  hear  and  deter- 
mine all  unadjusted  claims  of  all  persons,  against  the  state  of  Illi- 
nois, and  said  commission  shall  hear  and  determine  such  claims  ac- 
cording to  the  principles  of  equity  and  justice,  except  as  otherwise 
provided  in  the  laws  of  this  state,  and  in  case  said  commission  shall 
allow  any  such  claim,  they  shall  make  and  award  in  favor  of  the  claim- 
ant, finding  the  amount  due  to  such  claimant,  and  naming  the  claim- 
ant, which  said  award  shall  be  filed  and  recorded  in  the  office  of  the 
Auditor  of  Public  Accounts,  in  a  book  to  be  kept  by  him  for  that 
purpose.     *     *     * 

Sec.  5.  The  Auditor  shall,  in  his  biennial  report  to  the  Governor, 
include  a  detailed  statement  of  all  such  awards,  and  said  statement 
shall  be  laid  before  the  two  houses  of  the  General  Assembly  at  its 
session  held  next  after  the  filing  of  said  awards. 


ACT  ILL.  MAY  16,  1903. 
(Laws  1903,  p.  140.) 

An  act  to  create  the  Court  of  Claims  and  to  prescribe  its  powers  and 
duties. 

Sec.  2.  The  Court  of  Claims  shall  consist  of  three  persons,  not  more 
than  two  of  whom  shall  belong  to  the  same  political  party,  learned  in 
the  law  and  experienced  in  its  practice,  appointed  by  the  Governor, 
by  and  with  the  advice  and  consent  of  the  Senate,  who  shall  hold  their 
office  for  the  term  of  four  years,  from  the  time  of  their  appointment 
and  until  their  successors  or  successor  of  either  of  them,  shall  be  ap- 
pointed.    *     *     * 

Sec.  3.  The  Court  of  Claims  shall  have  power  to  make  such  rules, 
not  inconsistent  with  or  contrary  to  law,  for  the  government  of  pro- 
ceedings before  it  as  it  may  deem  proper,  and  shall  have  the  same  pow- 
er to  enforce  such  rules,  and  to  jDreserve  order  and  decorum  in  its 
presence,  as  is  vested  by  common  law  or  statute  of  this  state  in  any 
court  of  general  jurisdiction.  And  it  shall  be  the  duty  of  said  court 
to  hear  and  determine  the  following  matters : 

First — All  unadjusted  claims  founded  upon  any.  law  of  the  state  or 
upon  any  contract,  express  or  implied,  with  the  government  of  the 
state,  and  all  claims  which  may  be  referred  to  it  by  either  house  of  the 
General  Assembly. 

Second — All  claims  against  the  state  for  the  taking  or  damaging  of 
private  property  by  the  state  for  public  purposes  in  the  construction, 
or  for  the  use  of  any  state  institution,  river,  canal,  or  other  public  im- 
provement, which  have  not  been  already  barred  by  any  statute  or  law 
of  limitations,  or  heretofore  heard  and  determined  by  said  commission. 


i    Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR   MONEY.  367 

!       Third — All  unadjusted  and  controverted  claims  against  the  board  of 
!  trustees,  or  board  of  directors  of  any  of  the  public  educational,  char- 
'  itable,  penal  or  reformatory  institutions  of  the  state,  canal  commis- 
sioners, commissioners  for  the  construction  of  the  state  capitol  build- 
ing, state  board  of  education,  the  military  power  of  the  state  when 
I  called  into  action  for  the  preservation  of  the  public  peace  or  order,  or 
for  instruction  in  camp,  arising  out  of  any  contract  expressed  or  im- 
plied, or  in  tort,  or  for  any  damages,  whether  liquidated  or  unliqui- 
dated, or  any  other  claim  or  demand  whatsoever. 

Fourth — All  other  unadjusted  claims  of  whatsoever  nature  or  char- 
acter against  the  state  of  Illinois. 

Fifth — All  set-offs,  counterclaims,  claims  for  damages,  whether  liq- 
uidated or  unliquidated,  or  other  demands  whatsoever  on  the  part  of 
!  the  state  of  Illinois,  or  any  board  of  trustees,  directors,  or  commis- 
sioners, or  military  authority  against  whom  any  such  claim  shall  have 
I  been  presented  to  such  court.     And  such  court  shall  hear  such  claims 
I  according  to  its  rules  and  established  practice,  and  determine  the  same 
I  according  to  the  principles  of  equity  and  justice,  except  as  otherwise 
;  provided  in  the  laws  of  this  state,  and  shall  file  with  the  records  of 
^  each  claim  determined,  a  brief  written  statement  of  the  reason  of  the 
'  determination,  and  in  case  such  court  shah  allow  all  or  any  part  of 
!  such  claim,  they  shall  make  an  award  in  favor  of  the  claimant,  finding 
the  amount  due  to  each  claimant,  which  said  award,  shall  be  filed  and 
I  recorded  in  the  office  of  the  Auditor  of  Public  Accounts  in  a  book  to 
}  be  kept  by  him  for  that  purpose.     *     *     * 

{  Sec.  8.  The  Auditor  shall,  in  his  biennial  report  to  the  Governor, 
!  include  a  detailed  statement  of  all  such  awards,  and  said  statement 
1  shall  be  laid  before  the  two  houses  of  the  General  Assembly  at  its 
j  session  held  next  after  the  filing  of  such  award.     *     *     * 

I  Sec.  11.  An  act  to  create  a  commission  of  claims  and  to  prescribe 

II  its  powers  and  duties,  approved  May  29,  1877,  in  force  July  1,  1877, 
I  as  amended  by  act  of  June  3,  1889,  in  force  July  1,  1889,  is  hereby 
I  repealed.^^ 


UNITED  STATES  REVISED  STATUTES. 

Sec.  1059.  [Act  Feb.  24,  1855.]  The  Court  of  Claims  shall  have 
'  jurisdiction  to  hear  and  determine  the  following  matters : 
;  First.  All  claims  founded  upon  any  law  of  Congress,  or  upon  any 
regulation  of  an  Executive  Department,  or  upon  any  contract,  ex- 
{  pressed  or  implied,  with  the  Government  of  the  United  States,  and  all 
i  claims  which  may  be  referred  to  it  by  either  House  of  Congress. 
j  [U.  S.  Comp.  St.  1901,  p.  734.] 

«iFor  New  York,  see  Laws  1870,  c.  321;    Laws  1876,  c.  444;    Laws  1883,  c. 
205;   Laws  1897,  c,  36.     For  Massachusetts,  see  Rev.  Laws,  c.  201. 


368  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part   2 

Sec.  1089.  In  all  cases  of  final  judgments  by  the  Court  of  Claims, 
or,  on  appeal,  by  the  Supreme  Court,  where  the  same  are  affirmed 
in  favor  of  the  claimant,  the  sum  due  thereby  shall  be  paid  out  of  any 
general  appropriation  made  by  law  for  the  payment  and  satisfaction 
of  private  claims,  on  presentation  to  the  Secretary  of  the  Treasury 
of  a  copy  of  said  judgment,  certified  by  the  clerk  of  the  Court  of 
Claims,  and  signed  by  the  chief  justice,  or,  in  his  absence,  by  the  pre- 
siding judge  of  said  court.     [U.  S.  Comp.  St.  1901,  p.  745.]  ^^ 


IvANGFORD  V.  UNITED  STATES. 
(Supreme  Court  of  United  States,  1879.     101  U.  S.  341,  25  L.  Ed.  1010.) 

Appeal  from  the  Court  of  Claims. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

This  suit  was  brought  by  the  plaintiff  against  the  United  States 
to  recover  for  the  use  and  occupation  of  certain  lands  and  buildings. 
The  judgment  of  the  Court  of  Claims  was  rendered  against  him,  and 
he  appealed  here. 

The  first  question  arising  in  this  case  concerns  the  jurisdiction  of 
the  Court  of  Claims,  upon  the  suggestion  of  the  Attorney  General 
that  the  claim  is  not  founded  on  contract,  either  express  or  implied. 
That  court  could  have  no  cognizance  of  the  case  on  any  other 
ground,  according  to  the  express  language  of  the  statute  defining 
its  jurisdiction.     Rev.  St.  §  1059   (U.  S.  Comp.  St.  1901,  p.  734). 

The  findings  of  the  court  leave  no  doubt  that  the  Indian  agents 
acting  for  the  United  States,  and  without  the  consent  of  the  Ameri- 
can Board  of  Commissioners  for  Foreign  Missions,  took  possession 
of  the  buildings  which  that  board  had  erected  upon  the  lands,  and 
have  since  retained  them  by  force  and  against  its  will  or  that  of 
Langford,  who  claims  title  under  it.  The  United  States  always  as- 
serted that  their  possession  was  by  virtue  of  their  own  title,  which 
was  hostile  to  that  of  the  claimant.  The  military  of  the  United 
States  was  at  one  time  ordered  to  protect  by  force  the  occupation  of 
the  agents. 

Conceding  that  the  title,  or  even  the  right  to  the  possession  of  the 
premises,  was  in  claimant,  it  would  seem  that  the  facts  above  stated 

6  2  Act  March  2.  1S87,  c.  3.59,  24  Stat.  505  (U.  S.  Comp.  St.  1901,  p.  7.52), 
known  as  the  Tucker  act:  The  provisions  of  this  act  are  set  forth  in  U.  S.  v. 
Jones,  131  U.  S.  1,  9  Sup.  Ot.  6G9,  33  L.  Ed.  90  (1889).  post,  p.  382. 

See,  also,  Act  May  7,  1822,  c.  96,  §  6,  3  Stat.  p.  692:  "It  shall  be  lawful 
for  the  legal  representative  of  any  former  proprietor  of  the  land  directed 
to  be  disposed  of  by  this  act,  or  persons  lawfully  claiming  title  under  them, 
and  they  are  hereby  permitted  and  authorized,  at  any  time  within  one  year 
from  the  passing  of  this  act,  to  institute  a  bill  in  equity  in  the  nature  of  a 
petition  of  right  against  the  United  States,  in  the  Circuit  Court  of  the  United 
States  for  the  District  of  Columbia,  in  which  they  may  set  forth  the  grounds 
of  their  claim  to  the  land  in  question."     See  13  Am.  Jurist,  p.  34. 


Ch.  7)  ACTIONS  TO   RECOVER  DAMAGES   OR  MONEY.  369 

show  that  the  act  of  the  United  States  in  taking  and  holding  that 
possession  was  an  unequivocal  tort,  if  the  government  can  be  capable 
of  committing  one,  and  that  if  the  case  were  between  individuals 
every  implication  of  a  contract  would  be  repelled. 

Counsel  for  claimant,  admitting  this  to  be  true,  makes  a  very  in- 
genious argument  to  prove  that  the  government,  in  taking  and  using 
the  property  of  an  individual  against  his  consent,  and  by  force,  can- 
not be  guilty  of  a  tort,  because  the  nature  of  the  relation  of  the  gov- 
ernment to  its  citizens,  and  the  provisions  of  the  Constitution,  create 
an  implied  obligation  to  pay  for  property,  or  for  the  use  of  property, 
so  taken.  The  argument  rests  on  two  distinct  propositions:  (1) 
That  the  maxim  of  English  constitutional  law,  that  the  king  can  do  no 
wrong,  is  one  which  the  courts  must  apply  to  the  government  of 
the  united  States,  and  that  therefore  there  can  be  no  tort  committed 
by  the  government.  (2)  That  by  virtue  of  the  constitutional  provi- 
sion that  private  property  shall  not  be  taken  for  public  use,  without 
just  compensation,  there  arises  in  all  cases  where  such  property  is 
so  taken  an  implied  obligation  to  pay  for  it. 

It  is  not  easy  to  see  how  the  first  proposition  can  have  any  place 
in  our  system  of  government. 

We  have  no  king  to  whom  it  can  be  applied.  The  President,  in 
the  exercise  of  the  executive  functions,  bears  a  nearer  resemblance  to 
the  limited  monarch  of  the  English  government  than  any  other 
branch  of  our  government,  and  is  the  only  individual  to  whom  it 
could  possibly  have  any  relation.  It  cannot  apply  to  him,  because 
the  Constitution  admits  that  he  may  do  wrong,  and  has  provided, 
by  the  proceeding  of  impeachment,  for  his  trial  for  wrong-doing, 
and  his  removal  from  office  if  found  guilty.  None  of  the  eminent 
counsel  who  defended  President  Johnson  on  his  impeachment  trial 
asserted  that  by  law  he  was  incapable  of  doing  wrong,  or  that,  if 
done,  it  could  not,  as  in  the  case  of  the  king,  be  imputed  to  him,  but 
must  be  laid  to  the  charge  of  the  ministers  who  advised  him. 

It  is  to  be  observed  that  the  English  maxim  does  not  declare  that 
the  government,  or  those  who  administer  it,  can  do  no  wrong;  for 
it  is  a  part  of  the  principle  itself  that  wrong  may  be  done  by  the 
governing  power,  for  which  the  ministry,  for  the  time  being,  is  held 
responsible;  and  the  ministers  personally,  like  our  President,  may  be 
impeached,  or,  if  the  wrong  amounts  to  a  crime,  they  may  be  indict- 
ed and  tried  at  law  for  the  offense. 

We  do  not  understand  that  either  in  reference  to  the  government 
of  the  United  States,  or  of  the  several  states,  or  of  any  of  their  of- 
ficers, the  English  maxim  has  an  existence  in  this  country. 

The  other  point  is  one  which  requires  more  delicate  handling. 

We  are  not  prepared  to  deny  that  when  the  government  of  the 
United  States,  by  such  formal  proceedings  as  are  necessary  to  bind 
it,  takes  for  public  use,  as  for  an  arsenal,  custom  house,  or  fort, 
Fr.  A  DM.  Law— 24 


370  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

land  to  which  it  asserts  no  claim  of  title,  but  admits  the  ownership 
to  be  private  or  individual,  there  arises  an  implied  obligation  to 
pay  the  owner  its  just  value. 

it  is  to  be  regretted  that  Congress  has  made  no  provision  by  any 
general  law  for  ascertaining  and  paying  this  just  compensation. 
And  we  are  not  called  on  to  decide  that  when  the  government,  act- 
ing by  the  forms  which  are  sufficient  to  bind  it,  recognizes  the  fact 
that  it  is  taking  private  property  for  public  use,  the  compensation 
may  not  be  recovered  in  the  Court  of  Claims.  On  this  point  we  de- 
cide nothing. 

What  is  pertinent  to  the  present  case  is  that,  conceding  that  prin- 
ciple, it  does  not  confer  on  that  court  the  authority  to  decide  that 
the  United  States,  in  asserting  the  right  to  use  its  own  property,  is 
using  that  of  an  individual,  and  in  taking  possession  of  such  prop- 
erty under  claim  of  title,  and  retaining  it  by  force  against  an  oppos- 
ing claimant,  has  come  under  an  implied  contract  to  pay  him  for 
the  use  of  the  property.  In  the  first  case,  the  government  admits  the 
title  of  the  individual  and  his  right  to  compensation.  This  right  to 
compensation  follows  from  the  two  propositions,  that  it  was  pri- 
vate property  and  was  taken  for  public  use,  neither  of  which  is  dis- 
puted. 

It  is  a  very  different  matter  where  the  government  claims  that  it 
is  dealing  with  its  own,  and  recognizes  no  title  superior  to  its  own. 
In  such  case  the  government,  or  the  officers  who  seize  such  property, 
are  guilty  of  a  tort,  if  it  be  in  fact  private  property.  No  implied 
contract  to  pay  can  arise  any  more  than  in  the  case  of  such  a  trans- 
action between  individuals.  It  is  conceded  that  no  contract  for  use 
and  occupation  w^ould,  in  that  case,  be  implied. 

Congress,  in  establishing  a  court  in  which  the  United  States  may 
primarily  be  sued  as  defendants,  proceeded  slowly  and  with  great 
caution.  As  at  first  organized,  the  Court  of  Claims  was  merely  an 
auditing  board,  authorized  to  pass  upon  claims  submitted  to  it,  and 
report  to  the  Secretary  of  the  Treasury.  He  submitted  to  Congress 
such  confirmed  claims  as  he  approved,  with  an  estimate  for  their  in- 
sertion in  the  proper  appropriation  bill.  Such  as  he  disapproved 
demanded  no  further  action. 

It  was  by  reason  of  that  feature  of  the  law  that  this  court  refused 
to  exercise  the  appellate  jurisdiction  over  awards  of  that  court 
which  the  act  of  Congress  attempted  to  confer,  because  the  court 
was  of  opinion  that  the  so-called  Court  of  Claims  was  not,  in  the 
constitutional  sense,  a  court  which  could  render  valid  judgments, 
and  because  there  could  be  no  appeal  from  the  Supreme  Court  to 
the  Secretary  of  the  Treasury.  Gordon  v.  United  States,  3  Wall. 
561,  17  L.  Ed.  921.  An  act  of  Congress  removing  this  objectionable 
feature  having  passed  the  year  after  that  decision,  the  appellate  power 
of  this  court  has  been  exercised  ever  since.  The  jurisdiction  of  that 
court  has  received  frequent  additions  by  the  reference  of  cases  to  it* 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR   MONEY.  371 

under  special  statutes,  and  by  other  changes  in  the  general  law ; 
but  the  principle  originally  adopted,  of  limiting  its  general  jurisdic- 
tion to  cases  of  contract,  remains.  There  can  be  no  reasonable 
doubt  that  this  limitation  to  cases  of  contract,  express  or  implied, 
was  established  in  reference  to  the  distinction  between  actions  arising 
'  out  of  contracts,  as  distinguished  from  those  founded  on  torts,  which 
is  inherent  in  the  essential  nature  of  judicial  remedies  under  all  sys- 
tems, and  especially  under  the  system  of  the  common  law. 

The  reason  for  this  restriction  is  very  obvious  on  a  moment's  re- 
,  flection.     While   Congress   might  be  willing  to   subject  the   govern- 
ment to  the  judicial  enforcement  of  valid  contracts,  which  could  only 
I  be  valid  as  against  the  United  States  when  made  by  some  officer  of 
!  the  government  acting  under  lawful  authority,  with  power  vested  in 
him  to  make  such  contracts,  or  to  do  acts  which  implied  them,  the 
.  very  essence  of  a  tort  is  that  it  is  an  unlawful  act,  done  in  violation 
'  of  the  legal  rights  of  some  one.     For  such  acts,  however  high  the 
position  of  the  officer  or  agent  of  the  government  who  did  or  com- 
I  manded  them.  Congress  did  not  intend  to  subject  the  government  to 
the  results  of  a  suit  in  that  court.     This  policy  is  founded  in  wisdom, 
and  is  clearly  expressed  in  the  act   defining  the  jurisdiction  of  the 
I  court ;    and  it  would   ill   become  us   to   fritter   away   the    distinction 
between  actions  ex  delicto   and  actions  ex  contractu,   which  is  well 
understood  in  our  system  of  jurisprudence,  and  thereby  subject  the 
'  government   to  payment  of  damages   for  all   the  wrongs  committed 
,  by  its  officers  or  agents,  under  a  mistaken  zeal,  or  actuated  by  less 
worthy  motives. 

,     The  question  is  not  a  new  one  in  this  court. 

;  In  Nicholl  v.  United  States,  7  Wall.  123,  19  L.  Ed.  125,  where  a 
I  suit  was  brought  in  the  Court  of  Claims  to  recover  back  money  ex- 
;  acted  of  an  importer  in  excess  of  the  duties  allowed  by  law,  the 
[court  held  that  no  contract  to  refund  w^as  implied,  because  the 
[money,  though  paid  under  protest,  was  paid  voluntarily,  and  for  this 
treason,  among  others,  that  court  had  no  jurisdiction. 
j  In  Gibbons  v.  United  States,  8  Wall.  269,  19  L.  Ed.  453,  an  army 
jcontractor,  who  had  agreed  to  furnish  two  hundred  thousand  bushels 
,of  oats  at  a  fixed  price,  had,  as  this  court  held,  after  delivering  part 
iof  the  amount,  been  legally  released  from  the  obligation  to  deliver 
jthe  balance.  He  was,  however,  carried  before  the  military  authority 
'in  a  state  of  fear  and  trepidation  and  to  save  himself  further  trouble 
[agreed  to  and  did  deliver  the  remainder  of  the  oats.  He  sued  in  the 
Court  of  Claims  for  the  difiference  between  the  contract  price  and 
jthe  market  price  of  the  oats  at  the  time  of  the  delivery.  One  ground 
j3f  his  claim  was  that  he  acted  under  duress  and  the  constraint  of 
;fear,  and  that  his  agreement  to  deliver  at  the  contract  price  was  void. 
',  This  court  said,  in  answer  to  this  argument,  that  "it  is  not  to  be  dis- 
l^uised  that  this  case  is  an  attempt,  under  the  asstmiption  of  an  im- 
jilied  contract,  to  make  the  government   responsible   for  the  unau- 


372  RELIEF   AGAIiS'ST   ADMINISTRATIVE   ACTION.  (Part    3 

thorized  acts  of  its  officers,  those  acts  being  in  themselves  torts. 
:):  *  .+  'j^i-jg  language  of  the  statutes  which  confer  jurisdiction 
upon  the  Court  of  Claims  excludes,  by  the  strongest  implication, 
demands  against  the  government  founded  on  torts.  The  general 
principle  which  we  have  already  stated  as  applicable  to  all  govern- 
ments, forbids,  on  a  pohcy  imposed  by  necessity,  that  they  should 
hold  themselves  liable  for  unauthorized  wrongs  inflicted  by  their 
officers  on  the  citizen,  though  occurring  while  engaged  in  the  dis- 
charge of  official  duties.  *  *  *  These  reflections  admonish  us  to 
be  cautious  that  we  do  not  permit  the  decision  of  this  court  to  be- 
come authority  for  righting  in  the  Court  of  Claims  all  wrongs  done 
to  individuals  by  the  officers  of  the  general  government,  though  they 
have  been  committed  while  serving  the  government  and  in  the  belief 
that  it  was  for  its  interest.  In  such  cases,  where  it  is  proper  for 
the  nation  to  furnish  a  remedy.  Congress  has  wisely  reserved  the 
matter  for  its  own  determination." 

With  the  reaffirmation  of  this  doctrine,  which  excludes  the  pres- 
ent case  from  the  jurisdiction  of  that  court,  its  judgment  dismissing 
the  petition  of  plaintiff  is  affirmed. '^^ 


UNITED  STATES  v.  GREAT  FALLS  MFG.  CO. 

(Supreme  Court  of  United  States,  1SS4.     112  U.  S.  645,  5  Sup.  Ct.  30G,  28 
L.  Ed.  840.) 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court."*     *     *     * 
From  the  report  and  documents  transmitted  to  Congress  by  Presi- 
dent Fillmore  it  appears  that,  in  the  judgment  of  the  engineer  de- 
partment, the  best  mode  of  supplying  the  cities  of  Washington  and 
Georgetown   with   wholesome  water   was   by   an   aqueduct   from  the 

6  3  The  sovereign  is  not  liable  for  the  tort  of  his  agents,  even  where  consent 
is  given  to  be  sued  on  any  cause  of  action.  Rexford  v.  State,  105  N.  Y.  229, 
11  N.  E.  514  (1SS7);  Belt  v.  State  of  Illinois,  1  111.  Court  of  Claims  Rep. 
200  (1902).  But  see  Ballou  v.  State,  111  N.  Y.  496,  18  N.  E.  627  (1888), 
case  of  a  nuisance  caused  by  property  of  state, 

"A  petition  of  right,  unlike  a  petition  addressed  to  the  grace  and  favor  of 
the  sovereign,  is  founded  on  the  violation  of  some  right  in  respect  of  which, 
but  for  the  immunity  from  all  process  with  which  the  law  surrounds  the  per- 
son of  the  sovereign,  a  suit  at  law  or  equity  could  be  maintained.  The  peti- 
tion must  therefore  show  on  the  face  of  it  some  ground  of  complaint  which, 
but  for  the  inability  of  the  subject  to  sue  the  sovereign,  might  be  made  the 
subject  of  a  judicial  proceeding.  Now,  apart  altogether  from  the  question 
of  procedure,  a  petition  of  right  in  respect  of  a  wrong  in  the  legal  sense  of 
the  term  shows  no  right  to  legal  redress  against  the  sovereign.  For  the 
maxim  that  the  king  can  do  no  Vv'rong  applies  to  personal  as  well  as  to  politi- 
cal wrongs,  and  not  only  to  wrongs  done  personally  by  the  sovereign,  if  such 
a  thing  can  be  supposed  to  be  possible,  but  to  injuries  done  to  a  subject  by 
the  authority  of  the  sovereign.  For  from  the  maxim  that  the  king  cannot 
do  vprong  it  follows  as  a  necessary  consequence  that  the  king  cannot  au- 
thorize wrong."     Feather  v.  Reg.,  6  B.  &  S.  257,  295  (1805). 

6  4  The  statement  of  facts  and  a  portion  of  the  opinion  are  omitted. 


Ch.  7)  ACTIONS  TO  RECOVER  DAMAGES  OR  MONEY.  373 

Great  Falls  of  the  Potomac;  also,  that  such  a  plan  necessarily  in- 
volved the  construction  of  a  dam  at  that  point  in  the  river.  Ex.  Doc. 
(Senate)  No.  48,  pp.  2,  35,  48,  32d  Cong.  2d  Sess.  By  the  annual 
report,  under  date  of  December  4,  1863,  of  Mr.  Usher,  Secretary 
of  the  Interior,  Congress  was  informed  that  "certain  parties  having 
from  time  to  time  made  claim  to  heavy  damages  for  the  diversion 
of  the  water  from  the  Potomac  river,"  his  immediate  predecessor, 
"with  a  view  to  settle  and  end  this  claim,  entered  into  an  agreement 
of  arbitration  with  the  claimants."  The  parties  referred  to  were  the 
present  claimants,  as  appears  by  the  agreement  of  arbitration,  by 
the  official  documents  submitted  to  Congress,  and  by  the  proceedings 
in  the  courts  of  Maryland  for  an  assessment  of  the  damages  which 
the  proposed  dam  should  cause  to  the  Great  Falls  Manufacturing 
Company. 

The  Secretary  said:  "Pursuant  to  this  agreement,  the  arbitrators 
met  from  time  to  time,  and  finally  submitted  their  award,  by  which 
they  adjudged  in  favor  of  the  claimants  upon  each  and  all  of  the 
plans  and  modes  submitted  to  them,  being  three  [four]  in  number, 
for  the  construction  of  the  dam  across  the  Potomac,  and  also  $12,- 
000  for  their  own  fees  as  arbitrators,  and  $761.84  for  the  expenses 
of  arbitration.  The  sums  being  large,  I  did  not  feel  justified  in 
applying  the  existing  appropriation  for  the  completion  of  the  aque- 
duct to  the  payment  thereof,  preferring  to  submit  the  whole  matter 
to  Congress  for  its  determination.  It  appears  from  the  report  of 
the  experienced  engineer  in  charge  of  the  work,  as  must  be  obvious 
to  every  observer,  that  an  ample  supply  of  water  for  the  use  of  the 
cities  of  Washington  and  Georgetown,  for  many  years  to  come,  can 
be  obtained  from  the  Potomac  by  the  erection  of  a  tight  dam,  ex- 
tending from  the  jMaryland  shore  to  Conn's  Island,  to  a  height 
which  will  give  a  head  of  six  feet  in  the  aqueduct,  and  yield  a  daily 
supply  of  65,000,000  gallons,"  etc.  After  expressing  the  opinion 
that  such  a  dam  could  not  work  injury  to  the  proprietors  of  the  wa- 
ter rights  claimed  at  the  Great  Falls,  the  Secretary  recommended 
that  a  reasonable  sum  be  appropriated  to  pay  the  expenses  of  the 
arbitration,  and  that  the  cost  previously  estimated  of  a  dam  across 
the  main  channel  be  diminished  to  that  of  the  proposed  dam  over 
the  east  channel. 

In  conformity  with  that  recommendation.  Congress,  by  the  act  of 
July  4,  1864,  made  the  appropriation  of  $150,000  for  the  purpose  O'f 
constructing  the  proposed  dam  of  solid  masonry,  and  for  paying  the 
existing  liabilities  and  the  expenses  connected  with  the  engineering, 
superintendence,  and  repairs  of  the  aqueduct.  Immediately  there- 
after a  contract  was  made  for  the  construction  of  that  dam.  In  his 
next  annual  report,  under  date  of  December  5,  1864,  the  Secretary  in- 
formed Congress  that  the  work  upon  the  dam  and  the  aqueduct  re- 
quired the  expenditure  of  the  additional  sum  of  $51,945.  For  that 
amount  an  appropriation  was  promptly  made.     With  the  Secretary's 


'i 


374  RELIEF   AGAINST   ADMIXISTUATIVE   ACTION.  (Part   2 

report  was  transmitted  to  Congress  that  of  the  engineer  in  charge, 
who  stated  that  "the  question  of  land  damages  and  water  rights  at 
the  Great  Falls  still  remains  unsettled."  The  dam  was  completed  to 
its  present  height  in  1867,  and  is  used  as  an  indispensable  part  of 
the  system  by  which  the  cities  of  Washington  and  Georgetown  have 
been  supplied  with  water.  Beyond  doubt  the  land  and  the  water 
rights  and  privileges  in  question  have  for  nearly  20  years  been  held 
and  used  by  officers  and  agents  of  the  government,  without  any  com- 
pensation whatever  having  been  made  therefor  to  the  claimant.  By 
what  authority  have  they  appropriated  to  public  use  the  property  of 
the  claimant?  The  answer  to  this  question  will  determine  whether 
the  present  demand  of  the  claimant  arises  out  of  an  implied  con- 
tract, and  therefore  enforceable  by  suit  against  the  United  States  in 
the  Court  of  Claims. 

It  seems  clear  that  these  property  rights  have  been  held  and  used 
by  the  agents  of  the  United  States,  under  the  sanction  of  legislative 
enactments  by  Congress ;  for  the  appropriation  of  money  specifically 
for  the  construction  of  the  dam  from  the  Maryland  shore  to  Conn's 
island  was,  all  the  circumstances  considered,  equivalent  to  an  express 
direction  by  the  legislative  and  executive  branches  of  the  govern- 
ment to  its  officers  to  take  this  particular  property  for  the  public  ob- 
jects contemplated  by  the  scheme  for  supplying  the  capital  of  the 
nation  with  wholesome  water.  The  making  of  the  improvements 
necessarily  involved  the  taking-  of  the  property;  and  if,  for  the  want 
of  formal  proceedings  for  its  condemnation  to  public  use,  the  claim- 
ant was  entitled,  at  the  beginning  of  the  work,  to  have  the  agents 
of  the  government  enjoined  from  prosecuting  it  until  provision  was 
made  for  securing,  in  some  way,  payment  of  the  compensation  re- 
quired by  the  Constitution — upon  wdiich  question  we  express  no  opin- 
ion— there  is  no  sound  reason  why  the  claimant  might  not  waive 
that  right,  and,  electing  to  regard  the  action  of  the  government  as  a 
taking  under  its  sovereign  right  of  eminent  domain,  demand  just 
compensation.  Kohl  v.  U.  S.,  91  U.  S.  374,  23  L.  Ed.  449.  In  that 
view,  we  are  of  opinion  that  the  United  States,  having  by  its  agents, 
proceeding  under  the  authority  of  an  act  of  Congress,  taken  the 
property  of  the  claimant  for  public  use,  are  under  an  obligation,  im- 
posed by  the  Constitution,  to  make  compensation.  The  law  will  im- 
ply a  promise  to  make  the  required  compensation,  where  property,  to 
which  the  government  asserts  no  title,  is  taken,  pursuant  to  an  act 
of  Congress,  as  private  property  to  be  applied  for  public  uses.  Such 
an  implication  being  consistent  with  the  constitutional  duty  of  the 
government,  as  well  as  with  common  justice,  the  claimant's  cause  of 
action  is  one  that  arises  out  of  implied  contract  within  the  meaning  of 
the  statute,  which  confers  jurisdiction  upon  the  Court  of  Claims  of 
actions  founded  "upon  any  contract,  express  or  implied,  with  the 
government  of  the  United  States." 


Ch.  7)  ACTIONS  TO  RECOVER  DAMAGES  OR  MOXEY.  375 

This  case  is  materially  dififerent  from  Langford  v.  U.  S.,  101 
U.  S.  341,  35  h.  Ed.  1010.  That  was  an  action  in  the  Court 
of  Claims  against  the  United  States  to  recover  for  the  use  and  oc- 
cupation of  certain  lands  and  buildings  to  which  the  claimant  as- 
serted title.  It  there  appeared  that,  throughout  the  whole  period 
of  such  occupation  and  use,  the  title  of  the  claimant  was  disputed  by 
the  government  and  that  possession  was  taken  and  held  by  its  agents 
in  virtue  of  a  title  asserted  to  be  in  the  United  States.  The  juris- 
diction of  the  Court  of  Claims  was  attempted  to  be  sustained  upon 
the  ground  that  the  government,  in  taking  and  using  the  property  of 
an  individual,  against  his  consent  and  by  force,  could  not,  under  the 
relations  between  it  and  the  citizen,  commit  a  tort,  but  was  under 
an  implied  obligation,  created  by  the  Constitution,  to  pay  for  the 
property,  or  for  the  use  of  the  property,  so  taken.  This  proposition 
was  held  to  be  untenable  under  the  facts  of  that  case,  for  the  reason 
that,  while  individual  officers  of  the  government  might  be  guilty  of 
a  tort,  if  the  property  so  held  by  them  was  in  fact  private  property, 
yet,  if  the  government  never  recognized  the  property  as  private  prop- 
erty, taken  by  its  agents  for  public  use,  it  could  not  be  held  liable 
for  its  value  as  upon  implied  contract.  In  the  same  case  it  was  said : 
"We  are  not  prepared  to  deny  that  when  the  government  of  the  Unit- 
ed States,  by  such  formal  proceedings  as  are  necessary  to  bind  it, 
takes  for  public  use,  as  for  an  arsenal,  custom  house,  or  'fort,  land  to 
which  it  asserts  no  title,  but  admits  the  ownership  to  be  private  or 
individual,  there  arises  an  implied  obligation  to  pay  the  owner  its 
just  value.  It  is  to  be  regretted  that  Congress  has  made  no  provi- 
sion by  any  general  law  for  ascertaining  and  paying  this  just  com- 
pensation. And  we  are  not  called  on  to  decide  that  when  the  gov- 
ernment, acting  by  the  forms  which  are  sufficient  to  bind  it,  recog- 
nizes the  fact  that  it  is  taking  private  property  for  public  use,  the 
compensation  may  not  be  recovered  in  the  court  of  claims.  On  this 
point  we  decide  nothing." 

The  question  thus  reserved  from  decision  is  substantially  the  one 
now  presented.  In  the  present  case  there  were,  it  is  true,  no  statu- 
tory proceedings  for  the  condemnation  of  the  claimant's  property 
rights.  Such  proceedings,  as  has  been  stated,  were  instituted  by 
the  United  States  in  one  of  the  courts  of  Maryland,  in  which  the 
property  rights  of  the  claimant  were  expressly  recognized.  But  they 
were  abandoned.  One  reason,  perhaps,  for  such  abandonment  was 
that,  in  the  judgment  of  the  officers  of  the  United  States,  a  fair  as- 
sessment of  damages  could  not  be  had  in  the  mode  prescribed  by  the 
Maryland  statute.  Be  this  as  it  may,  it  is  clear,  from  the  record,  that 
the  government  did  not  assert  title  in  itself  to  this  property,  at  the 
time  it  was  taken.  Having  abandoned  the  proceedings  of  condemna- 
tion, the  proper  officers  of  the  government,  in  conformity  with  the 
acts  of  Congress,  constructed  the  dam  from  the  Maryland  shore  to 
Conn's  Island,  the  doing  of  which  necessarily  involved  the  occupation 


376  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

and  use  of  the  property,  as  contemplated  in  what  was  called  the  fourth 
plan  for  bringing-  water  from  the  Great  Falls  to  Washington  and 
Georgetown.  In  such  a  case,  it  is  difficult  to  perceive  why  the  legal 
obligation  of  the  United  States  to  pay  for  what  was  thus  taken  pur- 
suant to  an  act  of  Congress,  is  not  quite  as  strong  as  it  would  have 
been  had  formal  proceedings  for  condemnation  been  resorted  to  for 
that  purpose.  If  the  claimant  makes  no  objection  to  the  particular 
mode  in  which  the  property  has  been  taken,  but  substantially  waives 
it,  by  asserting,  as  is  done  in  the  petition  in  this  case,  that  the  gov- 
ernment took  the  property  for  the  public  uses  designated,  we  do  not 
perceive  that  the  court  is  under  any  duty  to  make  the  objection  in 
order  to  relieve  the  United  States  from  the  obligation  to  make  just 
compensation.  In  reference  to  the  title  which  the  government  will 
acquire,  as  the  result  of  this  suit,  there  would  seem  to  be  no  diffi- 
culty. The  finding  of  the  court  is  that  the  claimant  exhibited  to  the 
arbitrators  a  valid  title  to  the  lands  in  question.  It  does  not  appear 
that  the  company  has  ever  parted  with  that  title ;  and  the  finding  is 
that  no  title  except  that  of  the  claimant  is  asserted. 

What  has  been  said  is  sufficient  to  dispose  of  the  case,  and   re- 
quires an  affirmance  of  the  judgment.     It  is  so  ordered. ^^ 


DOOLEY  V.  UNITED  STATES. 

(Supreme  Court  of  United  States,  1901.     182  U.  S.  222,  21  Sup.  Ct.  762,  45 
L.  Ed.  1074.) 

Mr.  Justice  Brown  delivered  the  opinion  of  the  court.*'*' 
1.  The  jurisdiction   of   the  court   in   this  case   is   attacked   by   the 
government  upon  the  ground  that  the  Circuit  Court,  as  a  court  of 
claims,  cannot  take  cognizance  of  actions  for  the  recovery  of  duties 
illegally  exacted. 

By  an  act  passed  March  3,  1887,  to  provide  for  the  bringing  of 
suits  against  the  government,  known  as  the  Tucker  act  (24  Stat.  505, 
c.  359  [U.  S.  Comp.  St.  1901,  p.  752]),  the  Court  of  Claims  was 
vested  with  jurisdiction  over,  "first,  all  claims  founded  upon  the  Con- 
stitution of  the  United  States  or  any  law  of  Congress,  except  for 
pensions,  or  upon  any  regulation  of  an  executive  department,  or 
upon  any  contract,  express  or  implied,  with  the  government  of  the 
United  States,  or  for  damages,  liquidated  or  unliquidated,  in  cases  not 
sounding  in  tort,  in  respect  of  which  claims  the  party  would  be  en- 
titled to  redress  against  the  United  States  either  in  a  court  of  law, 
equity,  or  admiralty,  if  the  United  States  were  suable" ;    and  by  sec- 

6  5  See,  also.  United  States  v.  Lynah,  188  U.  S.  445,  23  Sup.  Ct.  349,  47  L. 
Ed.  539  (1903). 

6  6  Only  a  portion  of  the  opinion  of  Mr.  Justice  Brown  is  printed. 


Ch.  7)  ACTIONS  TO   RECOVER  DAMAGES  OR  MONEY.  377 

tion  2  the  District  and  Circuit  Courts  were  given  concurrent  juris- 
diction to  a  certain  amount. 

The  first  section  evidently  contemplates  four  distinct  classes  of 
cases:  (1)  Those  founded  upon  the  Constitution  or  any  law  of 
Congress,  with  an  exception  of  pension  cases ;  (3)  cases  founded 
upon  a  regulation  of  an  executive  department;  (3)  cases  of  contract, 
express  or  implied,  with  the  government;  (4)  actions  for  damages, 
liquidated  or  unliquidated,  in  cases  not  sounding  in  tort.  The  words 
"not  sounding  in  tort"  are  in  terms  referable  only  to  the  fourth  class 
of  cases. 

The  exception  to  the  jurisdiction  is  based  upon  two  grounds : 
First,  that  the  court  has  no  jurisdiction  of  cases  arising  under  the 
revenue  laws;  and,  second,  that  it  has  no  jurisdiction  in  actions  for 
tort. 

In  support  of  the  first  proposition  we  are  cited  to  the  dase  of  Nich- 
ols V.  United  States,  7  Wall.  122,  19  L.  Ed.  125,  in  which  it  was 
broadly  stated  that  "cases  arising  under  the  revenue  laws  are  not 
within  the  jurisdiction  of  the  Court  of  Claims."  The  action  in  that 
case  was  brought  to  recover  an  excess  of  duties  paid  upon  certain 
liquors  which  had  leaked  out  during  the  voyage,  and,  being  thus  lost, 
were  never  imported  in  fact  into  the  United  States.  Plaintiffs  paid 
the  duties,  as  exacted,  but  made  no  protest,  and  subsequently  brought 
suit  in  the  Court  of  Claims  for  the  overpayment.  The  act  in  force  at 
that  time  gave  the  Court  of  Claims  power  to  hear  and  determine  "all 
claims  founded  upon  any  law  of  Congress,  or  upon  any  regulation  of 
an  executive  department,  or  upon  any  contract,  express  or  implied, 
with  the  government  of  the  United  States."  The  court  held,  first, 
that  the  duties  could  not  be  recovered  because  they  were  not  paid  un- 
der protest,  and,  second,  that  Congress  did  not  intend  to  confer 
upon  the  Court  of  Claims  jurisdiction  of  cases  arising  under  the 
revenue  laws,  inasmuch  as,  by  the  act  of  February  26,  1845  (5  Stat. 
727,  c.  22),  Congress  had  given  a  right  of  action  against  the  collector 
in  favor  of  persons  "who  have  paid,  or  shall  hereafter  pay,  money,  as 
and  for  duties,  under  protest  *  *  *  in  order  to  obtain  goods, 
wares,  or  merchandise  imported  by  him  or  them,  or  on  his  or  their 
account,  which  duties  are  not  authorized  or  payable  in  part  or  in 
whole  by  law,"  provided  that  protests  were  duly  made  in  writing. 
It  was  held  that  this  remedy  was  exclusive,  and  that  Congress,  after 
having  carefully  constructed  a  revenue  system,  with  ample  provisions 
to  redress  wrong,  did  not  intend  to  give  to  the  taxpayer  and  importer 
a  dififerent  and  further  remedy. 

Subsequent  statutes,  however,  have  so  far  modified  that  special 
remedy  that  it  can  no  longer  be  made  available,  and  the  broad  state- 
ment in  the  Nichols  Case,  that  revenue  cases  are  not  within  the  cog- 
nizance of  the  Court  of  Claims,  if  still  true,  must  be  accepted  with 
material  qualifications.  By  the  customs  administrative  act  of  1890, 
as  we  have  just  held  in  De  Lima  v.  Bidwell,  182  U.  S.  1,  21  Sup. 


378  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part   2 

Ct.  743,  45  L.  Ed.  1041,  an  appeal  is  given  from  the  decision  of  the 
collector  "as  to  the  rate  and  amount  of  duties  chargeable  upon  im- 
ported merchandise,"  to  a  board  of  general  appraisers,  whose  decision 
shall  be  final  and  conclusive  "as  to  the  construction  of  the  law  and 
the  facts  respecting  the  classification  of  such  merchandise  and  the 
rate  of  duty  imposed  thereon  under  such  classification,"  unless  ap- 
plication be  made  for  a  review  to  the  Circuit  Court  of  the  United 
States.  This  remedy  is  doubtless  exclusive  as  applied  to  customs 
cases ;  but,  as  we  then  held,  it  has  no  application  to  actions  against 
the  collector  for  duties  exacted  upon  goods  which  were  not  imported 
at  all.  Such  cases,  although  arising  under  the  revenue  laws,  are  not 
within  the  purview  of  the  customs  administrative  act;  as  for  such 
cases  there  is  still  a  common-law  right  of  action  against  the  col- 
lector, and  we  think  also  by  application  to  the  Court  of  Claims. 
There  would  seem  to  be  no  doubt  about  plaintiffs'  remedy  against 
the  collector  at  San  Juan. 

In  the  Nichols  Case  it  was  held  that,  as  there  was  a  remedy  by 
action  against  the  collector,  expressly  provided  by  statute,  that  rem- 
edy was  exclusive.  In  De  Lima  v.  Bidwell  we  held  that,  although  no 
other  remedy  was  given  expressly  by  statute  than  that  provided  by 
the  customs  administrative  act,  there  was  still  a  common-law  remedy 
against  the  collector  for  duties  exacted  upon  goods  not  imported  at 
all ;  but  it  does  not  therefore  follow  that  this  remedy  is  exclusive,  and 
that  the  importer  may  not  avail  himself  of  his  right  of  action  in  the 
Court  of  Claims. 

But  conceding  that  the  Nichols  Case  does  not  stand  in  the  way 
of  a  suit  in  the  Court  of  Claims,  the  government  takes  the  position  that 
a  suit  in  the  United  States  to  recover  back  duties  illegally  exacted  by 
a  collector  of  customs  is  really  an  action  "sounding  in  tort,"  though 
not  an  action  "for  damages,  liquidated  or  unliquidated,"  within  the 
fourth  class  of  cases  enumerated  in  the  Tucker  act. 

There  are  a  number  of  authorities  in  this  court  upon  that  subject 
which  require  examination.  The  question  is  whether  any  claim 
sounding  in  tort  can  be  prosecuted  in  the  Court  of  Claims,  notwith- 
standing the  words  "not  sounding  in  tort,"  in  the  Tucker  act,  are 
apparently  limited  to  claims  for  damages,  liquidated  or  unliquidated. 
The  question  was  first  considered  in  Langford  v.  United  States,  101 
U.  S.  341,  25  L.  Ed.  1010,  under  the  statute  above  cited,  giving  the 
Court  of  Claims  power  to  hear  and  determine  "all  claims  founded  up- 
on any  law  of  Congress,  or  upon  any  regulation  of  an  executive  de- 
partment, or  upon  any  contract,  express  or  implied,  with  the  govern- 
ment of  the  United  States."  The  suit  was  brought  to  recover  for 
the  use  and  occupation  of  certain  lands  and  buildings  of  which  pos- 
session had  been  forcibly  taken  by  agents  of  the  government,  against 
the  will  of  Langford,  who  claimed  title  to  the  lands.  It  was  held 
that  the  act  of  the  United  States  in  taking  and  holding  possession 
was  an  unequivocal  tort,  and  a  distinction  was  drawn  between  such 


Ch.  7)  ACTIONS   TO   RECOVER   DAMAGES   OR  MONEY.  379 

a  case  and  one  where  the  government  takes  for  public  use  lands 
to  which  it  asserts  no  claim  of  title,  but  admits  the  ownership  to 
l)e  private  or  individual,  in  which  class  there  arises  an  implied  ob- 
lig^ation  to  pay  the  owner  its  just  value.  "It  is  a  very  different 
matter  where  the  g-overnment  claims  that  it  is  dealing  with  its 
own,  and  recognizes  no  title  superior  to  its  own.  In  such  case 
the  government,  or  the  officers  who  seize  such  property,  are  guilty 
of  a  tort,  if  it  be  in  fact  private  property."  It  was  held  that  the 
limitation  of  the  act  to  cases  of  contract,  express  or  implied,  "was 
established  in  reference  to  the  distinction  between  actions  arising  out 
of  contracts,  as  distinguished  from  those  founded  on  torts,  which  is 
inherent  in  the  essential  nature  of  judicial  remedies  under  all  sys- 
tems, and  especially  under  the  system  of  the  common  law." 

The  case  was  rested  largely  upon  that  of  Gibbons  v.  United  States, 
8  Wall.  369,  19  L-  Ed.  453,  in  which  an  army  contractor  who  had 
agreed  to  furnish  certain  oats  at  a  fixed  price  had,  after  the  delivery 
of  part  of  the  amount,  been  released  from  the  obligation  to  deliver 
the  balance.  He  was,  however,  carried  before  the  military  authority, 
and,  influenced  by  threats,  agreed  to  deliver,  and  did  deliver,  the  full 
quantity  of  oats  specified  in  the  contract.  He  brought  suit  for  the 
difference  between  the  contract  price  and  the  market  price  of  the 
oats  at  the  time  of  delivery.  It  was  said  that  "if  such  pressure  was 
brought  to  bear  upon  him  as  would  make  the  renewal  of  the  contract 
void,  as  being  obtained  by  duress,  then  there  was  no  contract,  and 
the  proceeding  was  a  tort  for  which  the  officer  may  have  been  per- 
sonally liable,"  but  that  it  was  not  within  the  Court  of  Claims  act. 

The  act  of  March  3,  1887  (the  Tucker  act),  was  first  considered 
by  this  court  in  United  States  v.  Jones,  131  U.  S.  1;  9  Sup.  Ct.  669. 
33  L.  Ed.  90,  in  which  it  was  held  not  to  confer  upon  the  Court  of 
Claims  jurisdiction  in  equity  to  compel  the  issue  and  entry  of  a  patent 
for  public  land,  following  United  States  v.  Afire,  6  Wall.  573,  18  L. 
Ed.  917,  and  Bonner  v.  United  States,  9  Wall.  156,  19  L.  Ed.  666. 
In  delivering  the  opinion,  Mr.  Justice  Bradley  compared  the  original 
act  with  the  Tucker  act,  and  held  that  there  was  no  such  difference 
in  language  as  to  justify  an  equitable  jurisdiction  to  compel  the  is- 
sue of  a  patent. 

In  Hill  V.  United  States,  149  U.  S.  593,  13  Sup.  Ct.  1011,  37  L. 
Ed.  862,  it  was  held  that  a  claim  for  damages  for  the  use  and  oc- 
cupation of  land  under  tide  water,  for  the  erection  and  maintenance  of 
a  lighthouse,  without  the  consent  of  the  owner,  but  not  showing  that 
the  United  States  had  acknowledged  any  right  of  property  in  him  as 
against  them,  was  a  case  sounding  in  tort,  of  which  the  Circuit  Court 
had  no  jurisdiction  under  the  Tucker  act.  It  was  said  that  "the 
United  States  cannot  be  sued  in  their  own  courts  without  their  con- 
sent, and  have  never  permitted  themselves  to  be  sued  in  any  court 
for  torts  committed  in  their  name  by  their  officers.  Nor  can  the  set- 
tled distinction,  in  this  respect,  between  contract  and  tort,  be  evaded 


380  RELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part   2 

by  framing  the  claim  as  upon  an  implied  contract."  "An  action  in 
the  nature  of  assumpsit  for  the  use  and  occupation  of  real  estate  will 
never  lie  where  there  has  been  no  relation  of  contract  between  the 
parties,  and  where  the  possession  has  been  acquired  and  maintained 
under  a  different  or  adverse  title,  or  where  it  is  tortious  and  makes 
the  defendant  a  trespasser."  No  distinction  was  noticed  between 
the  phraseology  of  the  original  act  and  the  Tucker  act,  though  it 
seems  to  have  been  assumed  that  the  case  was  one  for  the  recovery  of 
"damages"  sounding  in  tort. 

In  Schillinger  v.  United  States,  155  U.  S.  103,  15  Sup.  Ct.  85,  39 
L.  Ed.  108,  it  was  held  that  the  Court  of  Claims  had  no  jurisdiction 
of  an  action  upon  a  claim  against  the  government  for  the  wrongful 
appropriation  of  a  patent  by  the  United  States,  against  the  protest  of 
the  patentee.  It  was  said  to  be  an  action  for  damages  sounding  in 
tort,  and  therefore  not  maintainable.  "Not  only  does  the  petition 
count  upon  a  tort,  but  also  the  findings  show  a  tort.  That  is  the 
essential  fact  underlying  the  transaction,  and  upon  which  rests  every 
pretense  of  a  right  to  recover.  There  was  no  suggestion  of  a  waiver 
of  the  tort  or  a  pretense  of  any  implied  contract  until  after  the  deci- 
sion of  the  Court  of  Claims  that  it  had  no  jurisdiction  over  an  action 
to  recover   for  the  tort." 

In  the  cases  under  consideration  the  argument  is  made  that  the 
money  was  tortiously  exacted;  that  the  alternative  of  payment  to  the 
collector  was  a  seizure  and  sale  of  the  merchandise  for  the  nonpay- 
ment of  duties ;  and  that  it  mattered  not  that  at  common  law  an 
action  for  money  had  and  received  would  have  lain  against  the  col- 
lector to  recover  them  back.  But  whether  the  exactions  of  these 
duties  were  tortious  or  not,  whether  it  was  within  the  power  of  the 
importer  to  waive  the  tort  and  bring  suit  in  the  Court  of  Claims  for 
money  had  and  received,  as  upon  an  implied  contract  of  the  United 
States  to  refund  the  money  in  case  it  was  illegally  exacted,  we  think 
the  case  is  one  within  the  first  class  of  cases  specified  in  the  Tucker 
act,  of  claims  founded  upon  a  law  of  Congress,  namely,  a  revenue 
law,  in  respect  to  which  class  of  cases  the  jurisdiction  of  the  Court 
of  Claims,  under  the  Tucker  act,  has  been  repeatedly  sustained. 

Thus,  in  United  States  v.  Kaufman,  96  U.  S.  5G7,  24  L.  Ed.  792,  a 
brewer  who  had  been  illegally  assessed  for  a  special  tax  upon  his  busi- 
ness was  held  entitled  to  bring  suit  in  the  Court  of  Claims  to  recover 
back  the  amount,  upon  the  ground  that  no  special  remedy  had  been 
provided  for  the  enforcement  of  the  payment,  and  consequently  the 
general  laws  which  govern  the  Court  of  Claims  may  be  resorted  to 
for  relief,  if  any  can  be  found  applicable  to  such  a  case.  This  is  upon 
the  principle  that  a  liability  created  by  statute  without  a  remedy  may 
be  enforced  by  a  common-law  action.  The  Nicholas  Case  was  distin- 
guished upon  the  ground  that  the  statute  there  had  provided  a  special 
remedy. 


Ch.  7)  ACTIONS  TO   RECOVER  DAMAGES   OR  MONEY.  381 

So,  too,  in  United  vStates  v.  Real  Estate  Sav.  Bank,  104  U.  S.  728, 
2(J  L.  Ed.  908,  the  Court  of  Claims  was  held  to  have  jurisdiction  of  a 
suit  to  recover  back  certain  taxes  and  penalties  assessed  upon  a  sav- 
ings bank. 

In  Campbell  v.  United  States,  107  U.  S.  407,  2  Sup.  Ct.  759,  27  L. 
Ed.  592,  it  was  held  that  a  party  claiming-  to  be  entitled  to  a  drawback 
of  duties  upon  manufactured  articles  exported  might,  when  payment 
thereof  has  been  refused,  maintain  a  suit  in  the  Court  of  Claims,  be- 
cause the  facts  found  raised  an  implied  contract  that  the  United  States 
would  refund  to  the  importer  the  amount  he  had  paid  to  the  govern- 
ment.    There  was  here  no  question  of  tort. 

In  United  States  v.  Great  Falls  Alfg.  Co.,  112  U.  S.  645,  5  Sup.  Ct. 
30(),  28  L.  Ed.  846,  it  was  held,  following  the  observation  of  Mr. 
Justice  Miller  in  Langford  v.  United  States,  that  where  property  to 
which  the  United  States  asserts  no  title  was  taken  by  their  officers  or 
agents,  pursuant  to  an  act  of  Congress,  as  private  property  for  public 
use,  there  was  an  implied  obligation  to  compensate  the  owner,  which 
might  be  enforced  by  suit  in  the  Court  of  Claims. 

So,  too,  in  Hollister  v.  Benedict  &  B.  Mfg.  Co.,  113  U.  S.  59,  5  Sup. 
Ct.  717,  28  L.  Ed.  901,  it  was  held  that  a  suit  might  be  maintained  in 
the  Court  of  Claims  to  recover  for  the  use  of  a  patented  invention,  if 
the  right  of  the  patentee  were  acknowledged.  To  the  same  effect  are 
United  States  v.  Palmer,  128  U.  S.  262,  9  Sup.  Ct.  104,  32  L.  Ed.  442, 
and  United  States  v.  Berdan  Fire-Arms  Mfg.  Co.,  156  U.  S.  552,  15 
Sup.  Ct.  420,  39  h.  Ed.  530. 

In  Medbury  v.  United  States,  173  U.  S.  492,  19  Sup.  Ct.  503,  43  L. 
Ed.  779,  it  was  held  the  Court  of  Claims  had  jurisdiction  of  an  action 
to  recover  an  excess  of  payment  for  lands  within  the  limits  of  a  rail- 
road grant  which  grant  was,  subsequent  to  the  payment,  forfeited  by 
act  of  Congress  for  nonconstruction  of  the  road. 

In  Swift  &  C.  &  B.  Co.  V.  United  States,  111  U.  S.  22,  4  Sup.  Ct. 
244,  28  L.  Ed.  341,  the  same  right  was  treated  as  existing  in  favor  of 
a  party  who  sued  for  a  commission  upon  the  amount  of  certain  ad- 
hesive stamps  which  he  had  at  one  time  purchased  for  his  own  use  from 
the  Bureau  of  Internal  Revenue.  See,  also,  United  States  v.  Law- 
son,  101  U.  S.  164,  25  L.  Ed.  860  ;  United  States  v.  Mosby,  133  U. 
S.  273,  10  Sup.  Ct.  327,  33  L.  Ed.  625.     *     *     *  " 

6'  German  Civil  Code,  §  31:  "An  association  is  liable  for  the  damage  done 
to  a  third  part.v  by  an  actionable  wrong  committed  by  the  governing  body  or 
one  of  its  members  or  by  a  representative  constituted  In  accordance  with  its 
by-laws  within  the  scope  of  the  functions  committed  to  such  body,  member  or 
representative." 

Section  89:  "The  rule  of  section  31  applies  to  the  Fiskus  (state)  and  to 
public  corporations,  trusts  and  institutions." 


382  RELIEF  AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

CHAPTER  VIII 
ACTIONS  FOR  SPECIFIC  RELIEF 


SECTION  42.— IN  GENERAL 

UNITED  STATES  v.  JONES. 
SAME  V.  TAUBENHEIMER.    SAME  v.  MONTGOMERY. 

(Supreme  Court  of  United  States,  ]889.     131  U.  S.  1,  9  Sup.  Ct.  GGO,  ;33 
L.  Ed.  90.) 

Appeals  from  the  Circuit  Court  of  the  United  States  for  the  District 
of  Oregon. 

Three  suits  by  Carrie  Jones,  Ilenry  Taubenheimer,  and  James  B. 
Alontgomery,  respectively,  against  the  United  States,  for  specific  per- 
formance. Demurrers  to  the  petitions  overruled,  and  the  United  States 
appeals. 

These  cases  are  suits  in  equity  brought  against  the  United  States 
under  the  recent  act  of  March  3,  1887  (U.  S.  Comp.  St.  1901,  p.  752) 
extending  the  jurisdiction  of  claims  against  the  government  to  the 
District  and  Circuit  Courts  of  the  United  States.  They  are  suits  for 
specific  performance,  seeking  to  compel  the  United  States  to  issue 
and  deliver  to  the  plaintiffs  respectively  patents  for  timber  land,  al- 
leged to  have  been  taken  up  and  purchased  by  them  under  the  act  for 
the  sale  of  timber  lands  in  the  states  of  California,  Oregon,  etc.,  passed 
June  3,  1878  (20  Stat.  89).  The  petitions  contain  averments  of  per- 
formance of  the  conditions  required  by  said  act,  the  payment  of  the 
price  of  the  lands  to  the  receiver  of  the  land  office,  the  giving  of  his 
certificates  and  receipts  therefor,  and  the  refusal  of  the  government  to 
issue  patents  to  the  petitioners  as  entitled  thereto.  They  pray  in  each 
case  for  a  decree — First,  that  the  petitioner  is  owner  of  the  land  by 
virtue  of  the  purchase;  and,  second,  that  the  United  States  issue 
and  deliver,  or  cause  to  be  issued  and  delivered,  in  accordance  with 
law,  a  patent  granting  and  conveying  the  land  purchased.  The  United 
States,  by  its  attorney,  demurred  to  the  several  petitions.  The  Circuit 
Court  overruled  the  demurrers,  and  rendered  decrees  for  the  plain- 
tiffs.    From  these  decrees  the  present  appeals  were  taken. 

Bradley,  J.  The  question  involved  is  whether  the  act  of  March 
3,  1887,  which  is  entitled  "An  act  to  provide  for  the  bringing  of 
suits  against  the  government  of  the  United  States"  (24  Stat.  505 
[U.  S.  Comp.  St.  1901,  p.  752]),  authorizes  suits  of  the  kind  like 
the    present,    which    are   brought,    not    for    the    recovery    of    money, 


I  Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  3S3 

but  for  equitable  relief  by  specific  performance,  to  compel  the  issue 
and  delivery  of  a  patent.     In  the  case  of  U.  S.  v.  Alire,   6  Wall. 

'  573,  18  L.  Ed.  947,  we  distinctly  held  that  the  acts  of  1855  and 
1863,  which  established  the  Court  of  Claims,  and  defined  its  juris- 
diction, did  not  give  it  power  to  entertain  any  such  suits  as  these ; 

I  and  that  case  was  followed  by  Bonner  v.  U.  S.,  9  Wall.  156,  19  L. 
Ed.  666,  and  has  been  approved  in  subsequent  cases.  U.  S.  v. 
Gillis,  95  U.  S.  407,  412,  24  L.  Ed.  503 ;  U.  S.  v.  Schurz,  102  U. 
S.  378,  404,  26  L.  Ed.  167. 

'  It  is  argued,  however,  that  the  new  law  has  extended  the  juris- 
diction of  the  Court  of  Claims  and  the  concurrent  jurisdiction  of  the 

i  Circuit  and  District  Courts,  or  at  least  the  latter,  so  as  to  embrace 

I  every  kind  of   claim,   equitable  as  well  as  legal,  and  specific  relief, 

■  or  a  recovery  of  property,  as  well  as  a  recovery  of  money.  If  such 
is   the    legislative   will,    of    course   the    courts    must    conform   to    it, 

I  although  the  management  and  disposal  of  the  public  domain,  in  which 
1  the  newly  claimed  jurisdiction  would  probably  be  most  frequently 
j  called  into  exercise,  has  always  been  regarded  as  more  appropriately 
belonging  to  the  political  department  of  the  government  than  to  the 
i  courts,    and   more   a   matter   of    administration   than   judicature.      A 

■  careful  examination  of  the  statute,  and  a  comparison  of  its  terms  with 
I  those  of  the  acts  of  1855  and  1863,  can  alone  settle  the  question. 

I  By  the  first  section  of  the  act  of  1855  (10  Stat.  612)  it  was  enacted 
j  that  a  court  should  be  established,  to  be  called  the  "Court  of  Claims," 
[  the  jurisdiction  of  which  was  defined  as  follows :  "The  said  court 
\  shall  hear  and  determine  all  claims  founded  upon  any  law  of  Con- 
'  gress,  or  upon  any  regulation  of  an  executive  department,  or  upon 
jany  contract,  express  or  implied,  with  the  government  of  the  United 
j  States,  which  may  be  suggested  to  it  by  a  petition  filed  therein ;    and 

also  all  claims  which  may  be  referred  to  it  by  either  house  of  Con- 
j  gress." 

I  The  act  of  March  3,  1863,  passed  to  amend  the  act  of  1855  (12 
1  Stat.  765),  added :  "That  the  said  court  *  *  *  shall  also  have 
[jurisdiction  of  all  set-offs,  counterclaims,  claims  for  damages,  whether 
i  liquidated  or  unliquidated,  or  other  demands  whatsoever,  on  the  part 
!of  the  government  against  any  person  making  claim  against  the  gov- 
jernment  in  said  court."  Jurisdiction  was  subsequently  given  of  claims 
i  for  the  proceeds  of  property  captured  or  abandoned  during  the  Re- 
jbellion,  and  of  claims  of  paymasters  and  other  disbursing  officers 
I  for  relief  from  responsibility  on  account  of  capture  of  government 
'funds  or  property  in  their  hands.  These  latter  branches  of  juris- 
1  diction  need  not  be  considered  here. 

j  Turning  now  to  the  act  of  ]\Iarch  3,  1887,  which  re-enacted  or  re- 
! vised  the  previous  laws  as  to  the  jurisdiction  of  the  Court  of  Claims, 
jand   conferred    concurrent   jurisdiction    for   limited   amounts   on   the 

ordinary  courts,  we  find  the  following  language  used : 

"The  Court  of  Claims  shall  have  jurisdiction  to  hear  and  determine 


384  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part   2 

tlie  following-  matters :    First.  All  claims  founded  upon  the  Constitu-   j 
tion  of  the  United  States  or  any  law  of  Congress,  except  for  pensions,   i  ij 
or  upon  any  regulation  of  an  executive  department,  or  upon  any  con-   ' 
tract,  expressed  or  implied,  with  the  government  of  the  United  States, 
or  for  damages,  liquidated  or  unliquidated,  in  cases  not  sounding  in 
tort,  in  respect  of  which  claims  the  party  would  be  entitled  to  re- 
dress against  the  United  States  either  in  a  court  of  law,  equity,  or 
admiralty,  if  the  United  States  were  suable.     *     *     *     Second.  All 
set-offs,    counterclaims,    claims    for   damages,    whether   liquidated   or 
unliquidated,  or  other  demands  whatsoever  on  the  part  of  the  govern- 
ment of  the  United  States  against  any  claimant  against  the  govern- 
ment in  said  court." 

"Sec.  2.  That  the  District  Courts  of  the  United  States  shall  have 
concurrent  jurisdiction  with  the  Court  of  Claims  as  to  all  matters 
named  in  the  preceding  section  where  the  amount  of  the  claim  does 
not  exceed  one  thousand  dollars,  and  the  Circuit  Courts  of  the  United 
States  shall  have  such  concurrent  jurisdiction  in  all  cases  where  the 
amount  of  such  claim  exceeds  one  thousand  dollars,  and  does  not 
exceed  ten  thousand  dollars." 

The  jurisdiction  here  given  to  the  Court  of  Claims  is  precisely  the 
same  as  that  given  in  the  acts  of  1855  and  1863,  with  the  addition 
that  it  is  extended  to  "damages  *  *  *  j^  cases  not  sounding 
in  tort"  and  to  claims  for  which  redress  may  be  had  "either  in  a  court 
of  law,  equity,  or  admiralty."  "Damages  in  cases  not  sounding  in 
tort" — that  is  to  say,  damages  for  breach  of  contract — had  already 
been  held  to  be  recoverable  against  the  government  under  the  former 
acts.  U.  S.  V.  Behan,  110  U.  S.  338,  4  Sup.  Ct.  81,  38  L.  Ed.  168; 
U.  S.  V.  Manufacturing  Co.,  112  U.  S.  615,  5  Sup.  Ct.  306,  28  L.  Ed. 
846;  Hollister  v.  Manufacturing  Co.,  113  U.  S.  59,  67,  5  Sup.  Ct. 
717,  28  L.  Ed.  901.  "Claims"  redressible  "in  a  court  of  law,  equity, 
or  admiralty,"  may  be  claims  for  money  only,  or  they  may  be  claims 
for  property  or  specific  relief  according  as  the  context  of  the  stat- 
ute may  require  or  allow. 

The  claims  referred  to  in  the  original  statute  of  1855,  as  described 
in  the  first  section  thereof,  above  quoted,  might  have  included  claims 
for  other  things  besides  money ;  but  various  provisions  of  that  act 
and  of  the  act  of  March  3,  1863,  were  inconsistent  with  the  enforce- 
ment of  any  claims  under  the  law  except  claims  for  money.  Thus,  in 
the  fifth  section  of  the  act  of  1863,  the  right  of  appeal  was  limited  to 
cases  in  which  the  amount  in  controversy  exceeded  $3,000,  and  in  the 
seventh  section  it  was  provided  that  if  judgment  should  be  given  in 
favor  of  the  claimant,  the  sum  due  thereby  should  be  paid  out  of  any 
general  appropriation  made  by  law  for  the  payment  of  private  claims; 
and,  if  a  judgment  was  affirmed  on  appeal,  interest  was  to.be  allowed 
thereon,  etc. 

In  the  case  of  U.  S.  v.  Alire,  6  Wall.  573,  18  L.  Ed.  947,  Mr.  Jus- 
tice Nelson,  speaking  for  the  court,   said :    "It  will  be  seen   by  the 


Ch.  8)  ACTIONS   FOR  SPECIEUC   RELIEF.  385 

above  reference  which  we  have  made  to  the  two  acts  of  Congress  on 
1  this  subject  that  the  only  judgments  which  the  Court  of  Claims  are 
authorized  to  render  against  the  government,  or  over  which  the  Su- 
preme Court  have  any  jurisdiction  on  appeal,  or  for  the  payment  of 
'   which  by  the  Secretary  of  the  Treasury  any  provision  is  made,  are 
'  judgments  for  money  found  due  from  the  government  to  the  peti- 
tioner.    And  although  it  is  true  that  the  subject-matter  over  which 
'  jurisdiction  is  conferred,  both  in  the  act  of  185.5  and  of  1863,  would 
i  admit  of  a  much  more  extended  cognizance  of  cases,  yet  it  is  quite 
I  clear  that  the  limited  power  given  to  render  a  judgment  necessarily 
I  retains  the  general  terms,  and  confines  the  subject-matter  to  cases 
I  in  which  the  petitioner  sets  up  a  moneyed  demand  as  due  from  the 
j  government."     The  decree  of  the  Court  of  Claims  in  that  case  was 
J  that  the  claimant  recover  of  the  government  a  military  land  warrant 
j  for  160  acres  of  land,  and  that  it  be  made  out  and  delivered  to  him 
by  the  proper  officer.    This  court  said :    "We  find  no  provision  in  any 
i  of  the  statutes  requiring  a  judgment  of  this  character,  whether  in  this 
I  court  or  in  the  Court  of  Claims,  to  be  obeyed  or  satisfied." 

The  sections  of  the  act  of  1863  referred  to  in  this  opinion  are  still 
j  in  force,  not  being  repealed  by  the  act  of  1887,  which  only  repeals 
I  "all  laws  and  parts  of  laws  inconsistent"  therewith.  Section  5,  re- 
I  lating  to  appeals,  is  transferred  to  section  707  of  the  Revised  Stat- 
!  utes  (U.  S.  Comp.  St.  1901,  p.  574),  giving  an  appeal  to  this  court 
I  "where  the  amount  in  controversy  exceeds  $3,000";  and  section  7, 
1  relating  to  the  mode  of  paying  judgments  out  of  a  general  appro- 
:  priation,  and  allowing  interest  where  a  judgment  is  affirmed,  is  con- 
,  tained  in  sections  1089,  1090  of  the  Revised  Statutes  (U.  S.  Comp. 
'  St.  1901,  p.  745).  These  sections  are  still  the  law  on  the  subjects  to 
i  which  they  relate,  being  necessary  to  the  completion  of  the  system, 
;  and  not  being  supplied  by  any  other  enactments.  Indeed,  they  are 
I  expressly  retained.  The  fourth  section  of  the  act  of  1887  declares 
1  that  "the  jurisdiction  of  the  respective  courts  of  the  United  States 
!  proceeding  under  this  act,  including  the  right  of  exception  and  ap- 
j  peal,  shall  be  governed  by  the  law  now  in  force,  in  so  far  as  the  same 
j  is  applicable,  and  not  inconsistent  with  the  provisions  of  this  act" ; 
i  and  the  ninth  section  declares  "that  the  plaintiff  or  the  United  States, 
i  in  any  suit  brought  under  the  provisions  of  this  act,  shall  have  the 
i  same  rights  of  appeal  or  writ  of  error  as  are  now  reserved  in  the 
'  statutes  of  the  United  States  in  that  behalf  made,  and  upon  the  con- 
J  ditions  and  limitations  therein  contained."  These  provisions  un- 
doubtedly include  the  Court  of  Claims  as  well  as  the  District  and 
j  Circuit  Courts.  So,  in  relation  to  interest,  section  10  declares  that 
j  "from  the  date  of  such  final  judgment  or  decree  interest  shall  be 
'  computed  thereon  at  the  rate  of  four  per  cent,  per  annum,  until  the 
'  time  when  an  appropriation  is  made  for  the  payment  of  the  judg- 
I  ment  or  decree."     It  seems,  therefore,  that  in  the  point  of  provid- 

)  Fr.Adii.Law — 25 

I 


» 


386  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part   3 

ing  only   for  money  decrees  and  money  judgments,   the  law   is   im-  ^ 
changed,  merely  being  so  extended  as  to  include  claims  for  money 
arising  out  of  equitable  and  maritime  as  well  as  legal  demands. 

We  do  not  think  that  it  was  the  intention  of  Congress  to  go  further 
than  this.  Had  it  been,  some  provision  would  have  been  made  for 
carrying  into  execution  decrees  for  specific  performance,  or  for  de- 
livering the  possession  of  property  recovered  in  kind.  The  general 
scope  and  purport  of  the  act  are  against  any  further  extension  than 
that  here  indicated.  The  expression  in  the  fifth  section,  referring  to 
"money  or  any  other  thing  claimed,  or  the  damages  sought  to  be  re- 
covered," on  which  so  much  reliance  is  placed  by  the  appellees,  cannot 
outweigh  the  considerations  referred  to,  and  operate  to  introduce 
entirely  new  fields  of  jurisdiction.  It  is  one  of  those  general  expres- 
sions which  must  be  restrained  by  the  more  special  and  definite  in- 
dications of  intention  furnished  by  the  context. 

We  cannot  yield  to  the  suggestion  that  any  broader  jurisdiction 
as  to  subject-matter  is  given  to  the  Circuit  and  District  Courts  than 
that  which  is  given  to  the  Court  of  Claims.  It  is  clearly  the  same 
jurisdiction — "concurrent  jurisdiction"  only — within  certain  limits  as 
to  amount;  and  the  language  in  which  those  limits  are  expressed 
furnishes  an  additional  argument  in  favor  of  the  conclusion  which 
we  have  reached.  It  is  declared  "that  the  District  Courts  of  the 
United  States  shall  have  concurrent  jurisdiction  with  the  Court  of 
Claims  *  *  *  where  the  amount  of  the  claim  does,  not  exceed 
$1,000,"  etc.  This  language  is  properly  applicable  only  to  a  money 
claim.  Had  anything  but  money  been  in  the  legislative  mind  the 
language  would  have  been,  "where  the  amount  or  value  of  the  thing 
claimed  does  not  exceed  $1,000,"  etc. 

Of  course,  our  province  is  construction  only;  the  policy  of  the 
law  is  the  prerogative  of  the  legislative  department.  But,  notwith- 
standing the  glowing  terms  in  which  able  jurists  have  spoken  of  the 
progress  of  civilization  and  enlightened  government  as  exhibited  in 
subjecting  government  itself,  equally  with  individuals,  to  the  juris- 
diction of  its  own  courts,  we  should  have  been  somewhat  surprised 
to  find  that  the  administration  of  vast  public  interests,  like  that  of  the 
public  lands,  which  belong  so  appropriately  to  the  political  depart- 
ment, had  been  cast  upon  the  courts — which  it  surely  would  have 
been,  if  such  a  wide  door  had  been  opened  for  suing  the  government 
to  obtain  patents  and  establish  land  claims,  as  the  counsel  for  the  ap- 
pellees in  these  cases  seems  to  imagine.  We  are  satisfied  that  the  door 
has  not  yet  been  thrown  open  thus  wide. 

The  decrees  of  the  court  are  reversed  in  all  the  cases,  and  the  causes 
are  respectively  remanded,  with  instructions  to  dismiss  the  original 
petitions  or  bills. 

Miller,  J.  (dissenting).  I  find  myself  unable  to  concur  with  the 
majority  of  the  court  in  the  construction  given  by  it  in  the  opinion 
just  read  to  the  provisions  of  the  act  of  "March  3,  1887.    This  act  was 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  387 

evidently  intended  to  confer  a  new  and  important  jurisdiction  upon 
the  Court  of  Claims,  and  a  concurrent  jurisdiction,  to  a  limited 
extent,  in  the  same  class  of  cases,  upon  the  Circuit  and  District  Courts 
of  the  United  States.  I  can  see  no  other  possible  object  in  that  part 
of  the  statute  which  confers  this  new  jurisdiction  by  the  use  of  lan- 
guage which  for  the  first  time  in  the  history  of  that  court  authorizes 
it  to  take  cognizance  of  claims  where  the  party  would  be  entitled  to 
redress  against  the  United  States,  either  in  a  court  of  law,  equity,  or 
admiralty,  if  the  United  States  were  suable,  than  to  make  them  suable 
in  such  cases.  To  hold  that  the  distinct  grant  of  power  here  provided 
for  is  controlled  by  the  fact  that  this  court  has  under  former  statutes 
decided  that  it  did  not  then  exist,  is  simply  to  nullify  this  new  grant 
of  power.  The  manifest  purpose  of  this  new  act  was  to  confer  power 
which  the  Court  of  Claims  did  not  previously  have,  and  to  authorize 
it  to  take  jurisdiction  of  a  class  of  cases  of  which  it  had  not  cogni- 
zance before.  To  say  that  under  such  circumstances  the  new  statute 
is  to  be  crippled  and  rendered  ineffectual  in  the  only  new  feature 
which  it  has,  in  regard  to  the  jurisdiction  of  that  court,  is,  in  my 
mind,  a  refusal  to  obey  the  law  as  made  by  Congress  in  the  matter  in 
which  its  power  is  undisputed.  It  is  clear  to  me  that  Congress  in- 
tended by  this  act  to  enlarge  very  materially  the  right  of  suit  against 
the  United  States,  to  facilitate  this  right  by  allowing  suits  to  be 
brought  in  the  Circuit  and  District  Courts  where  the  parties  resided, 
and  that  it  also  designed  to  enlarge  the  remedy  in  the  Court  of  Claims 
to  meet  all  such  cases  in  law,  equity,  and  admiralty  against  the  United 
States,  as  would  be  cognizable  in  such  courts  against  individuals. 

I  am  authorized  to  say  that  Mr.  Justice  Fikld  agrees  with  me  in 
this  dissent.^ 


UNITED  STATES  v.  LEE. 
KAUFMAN  et  al.  v.  SAME. 

(Supreme  Court  of  United  States,  1882.     lOG  U.  S.  19G,  1  Sup.  Ct.  240, 
27  L.  Ed.  171.) 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  East- 
ern District  of  Virginia. 

Miller,  J.^  These  are  two  writs  of  error  to  the  same  judgment, 
one  prosecuted  by  the  United  States,  eo  nomine,  and  the  other  by  the 
Attorney  General  of   the  United   States   in  the  names   of   Frederick 

!  1  In  1892  a  bill  was  passed  by  Congress  conferring  jurisdiction  in  the  mat- 
i  ter  of  land  patents,  but  it  was  vetoed  by  President  Harrison.  President's  Mes- 
I  sages,  vol.  9,  p.  247,  August  3,  1892.  See  Noble  v.  Union  River  Logging  R.  Co., 
!  147  U.  S.  IGo,  13  Sup.  Ct.  271,  37  L.  Ed.  123  (1893),  post,  p.  638;  United 
I  States  ex  rel.  Riverside  Oil  Co.  v.  Hitchcock,  190  U.  S.  316,  23  Sup;  Ct.  698, 
!47  L.  Ed.  1074  (1903). 
j      2  Only  a  portion  of  the  opinion  of  Miller,  J.,  is  printed. 


388  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part   3 

Kaufman  and  Richard  P.  Strong,  the  defendants  against  whom  judg- 
ment was  rendered  in  the  Circuit  Court.  The  action  was  originally 
commenced  in  the  circuit  court  for  the  county  of  Alexandria,  in  the 
state  of  Virginia,  by  the  present  defendant  in  error,  against  Kaufman 
and  Strong  and  a  great  number  of  others,  to  recover  possession  of 
a  parcel  of  land  of  about  1,100  acres,  known  as  the  Arlington  estate. 
It  was  an  action  of  ejectment  in  the  form  prescribed  by  the  statutes  of 
\^irginia,  under  which  the  pleadings  are  in  the  names  of  the  real  par- 
ties plaintiff  and  defendant.  As  soon  as  the  declaration  was  filed  in 
that  court  the  case  was  removed  into  the  Circuit  Court  of  the  United 
States  by  writ  of  certiorari,  where  all  the  subsequent  proceedings 
took  place.  It  was  tried  by  a  jury,  and  during  the  progress  of  the 
trial  an  order  was  made,  at  the  request  of  the  plaintiff,  dismissing 
the  suit  as  to  all  of  the  defendants  except  Kaufman  and  Strong. 
Against  each  of  these  a  judgment  was  rendered  for  separate  parcels 
of  the  land  in  controversy,  namely,  against  Kaufman  'for  about  200 
acres  of  it,  constituting  the  national  cemetery  and  included  within 
its  walls,  and  against  Strong  for  the  remainder  of  the  tract,  except 
17  acres  in  the  possession  of  Maria  Syphax. 

As  the  United  States  was  not  a  party  to  the  suit  below,  and,  while 
defending  the  action  by  its  proper  law  officers,  expressly  declined  to 
submit  itself  as  a  defendant  to  the  jurisdiction  of  the  court,  there 
may  exist  some  doubt  whether  it  has  a  right  to  prosecute  the  writ  of 
error  in  its  own  name;  but  as  the  judgment  against  Kaufman  and 
Strong  is  here  on  their  writ  of  error,  and  as  under  that  writ  all  the 
questions  are  raised  which  can  be  raised  under  the  other,  their  writ 
being  prosecuted  in  the  interest  of  the  United  States,  and  argued 
here  by  the  Solicitor  General,  the  point  is  immaterial,  and  the  ques- 
tion has  not  been  mooted.  •  The  first  step  taken  in  the  case,  after  it 
came  into  the  Circuit  Court  of  the  United  States,  was  the  filing  in  the 
clerk's  office  of  that  court  of  the  following  paper  by  the  Attorney 
General : 

"George  W.  C.  Lee  v.  Frederick  Kaufman,  R.  P.  Strong,  and  Others. 
(In  Ejectment.) 

"And  now  comes  the  Attorney  General  of  the  United  States  and 
suggests  to  the  court  and  gives  it  to  understand  and  be  informed  (ap- 
pearing only  for  the  purpose  of  this  motion)  that  the  property  in 
controversy  in  this  suit  has  been  for  more  than  10  years  and  now 
is  held,  occupied,  and  possessed  by  the  United  States,  through  its  of- 
ficers and  agents,  charged  in  behalf  of  the  government  of  the  United 
States  with  the  control  of  the  property,  and  who  are  in  the  actual 
possession  thereof,  as  public  property  of  the  United  States,  for  pub- 
lic uses,  in  the  exercise  of  their  sovereign  and  constitutional  powers, 
as  a  military  station,  and  as  a  national  cemetery  established  for  the 
burial  of  deceased  soldiers  and  sailors,  and  known  and  designated  as 
the  'Arlington  Cemetery,'  and  for  the  uses  and  purposes  set  forth  in 
the  certificate  of   sale,  a  copy  of  which,  as  stated  and  prepared  by 


Ch.  8)  ACTIONS   FOR  SPECIFIC   RELIEF.  389 

the  plaintiff,  and  which  is  a  true  copy  thereof,  is  annexed  hereto  and 
filed  herewith,  under  claim  of  title,  as  appears  by  the  said  certificate 
of  sale,  and  which  was  executed,  delivered,  and  recorded  as  therein 
appears. 

"Wherefore,  without  submitting  the  rights  of  the  government  of 
the  United  States  to  the  jurisdiction  of  the  court,  but  respectfully  in- 
sisting that  the  court  has  no  jurisdiction  of  the  subject  in  controver- 
sy, he  moves  that  the  declaration  in  said  suit  be  set  aside,  and  all 
the  proceedings  be  stayed  and  dismissed,  and  for  such  other  order  as 
may  be  proper  in  the  premises.        "Chas.  Devens,  Atty.  Gen.  U.  S." 

The  plaintiff  demurrer  to  this  suggestion,  and,  on  hearing,  the 
demurrer  was  sustained.  The  case  was  thereupon  tried  before  a 
jury  on  the  general  issue  pleaded  by  defendants  Kaufman  and  Strong, 
I  in  the  course  of  which  the  question  raised  by  this  suggestion  of  the 
Attorney  General  was  again  presented  to  the  court  by  prayers  for 
instruction,  which  were  rejected,  and  exceptions  taken. 

The  plaintiff  offered  evidence  establishing  title  in  himself  by  the 
will  of  his  grandfather,  George  Washington  Parke  Custis,  who  de- 
vised the  Arlington  estate  to  his  daughter,  the  wife  of  Gen.  Robert 
E.  Lee,  for  life,  and  after  her  death  to  the  plaintiff.  This,  with  the 
long  possession  under  that  title,  made  a  prima  facie  right  of  re- 
covery in  plaintiff.  The  title  relied  on  by  defendants  was  a  tax  sale 
certificate  made  by  the  commissioners  appointed  under  the  act  of 
Congress  of  June  7,  1863,  "for  the  collection  of  direct  taxes  in  the 
insurrectionary  districts  within  the  United  States,"  as  amended  by 
j  the  act  of  February  6,  18G3.  At  this  sale  the  land  was  bid  in  by 
,  said  commissioners  for  the  United  States,  and  a  certificate  of  that 
j  fact  was  given  by  these  commissioners  and  introduced  on  the  trial  as 
evidence  by  defendants.  If  this  sale  was  a  valid  sale,  and  the  cer- 
tificate conveyed  a  valid  title,  then  the  title  of  plaintiff  Avas  thereby 
divested,  and  he  could  not  recover.  If  the  proceedings  evidenced  by 
the  tax  sale  did  not  transfer  the  title  of  the  property  to  the  United 
States,  then  it  remained  in  the  plaintiff,  and,  so  far  as  the  question 
of  title  was  concerned,  his  recovery  was  a  rightful  one. 

We  have  then  two  questions  presented  to  the  court  and  jury  below, 
and  the  same  questions  arise  in  this  court  on  the  record:  (1)  Could 
any  action  be  maintained  against  the  defendants  for  the  possession  of 
the  land  in  controversy  under  the  circumstances  of  the  relation  of 
that  possession  to  the  United  States,  however  clear  the  legal  right  to 
that  possession  might  be  in  plaintiff?  (2)  If  such  an  action  could 
be  maintained,  was  the  prima  facie  title  of  plaintiff'  divested  by  the 
tax  sale  and  the  certificate  given  by  the  commissioners?  It  is  be- 
lieved that  no  division  of  opinion  exists  among  the  members  of  this 
court  on  the  proposition  that  the  rulings  of  law  under  which  the  lat- 
ter question  was  submitted  by  the  court  to  the  jury  was  sound,  and 
that  the  jury  were  authorized  to  find,  as  they  evidently  did  find,  that 


390  RELIEF  AGAINST   ADMINISTRATIVE   ACTION,  (Part   2 

the  tax  certificate  and  the  sale  which  it  recited  did  not  divest  the 
plaintiff  of  his  title  to  the  property. 

For  this  reason  we  will  consider  first  the  assignment  of  errors  on 
that  subject.  *  *  *  in  approaching  the  other  question  which  we 
are  called  on  to  decide,  it  is  proper  to  make  a  clear  statement  of  what 
it  is. 

The  counsel  for  plaintiffs  in  error,  and  in  behalf  of  the  United 
States,  assert  the  proposition,  that  though  it  has  been  ascertained  by 
the  verdict  of  the  jury,  in  which  no  error  is  found,  that  the  plaintiff 
has  the  title  to  the  land  in  controversy,  and  that  what  is  set  up  in 
behalf  of  the  United  States  is  no  title  at  all,  the  court  can  render  no 
judgment  in  favor  of  the  plaintiff  against  the  defendants  in  the  ac- 
tion, because  the  latter  hold  the  property  as  officers  and  agents  of 
the  United  States,  and  it  is  appropriated  to  lawful  public  uses. 
This  proposition  rests  on  the  principle  that  the  United  States  can- 
not be  lawfully  sued  without  its  consent  in  any  case,  and  that  no 
action  can  be  maintained  against  any  individual  without  such  con- 
sent, where  the  judgment  must  depend  on  the  right  of  the  United 
States  to  property  held  by  such  persons  as  officers  or  agents  for 
the  government.  The  first  branch  of  this  proposition  is  conceded  to 
be  the  established  law  of  this  country  and  of  this  court  at  the  pres- 
ent day;  the  second,  as  a  necessary  or  proper  deduction  from  the 
first,  is  denied. 

In  order  to  decide  whether  the  inference  is  justified  from  what  is 
conceded,  it  is  necessary  to  ascertain,  if  we  can,  on  what  principle 
the  exemption  of  the  United  States  from  a  suit  by  one  of  its  citizens 
is  founded,  and  what  limitations  surround  this  exemption.  In  this, 
as  in  most  other  cases  of  like  character,  it  will  be  found  that  the  doc- 
trine is  derived  from  the  laws  and  practices  of  our  English  ancestors; 
and  while  it  is  beyond  question  that  from  the  time  of  Edward  I  until 
now  the  king  of  England  was  not  suable  in  the  courts  of  that  country, 
except  where  his  consent  had  been  given  on  petition  of  right,  it  is  a 
matter  of  great  uncertainty  whether  prior  to  that  time  he  was  not 
suable  in  his  own  courts  and  in  his  kingly  character  as  other  per- 
sons were.  We  have  the  authority  of  Chief  Baron  Comyn,  1  Dig. 
132,  "Action,  C  1,"  and  6  Dig.  67,  "Prerogative,"  and  of  the  Mirror 
of  Justices,  c.  1,  §  3,  and  chapter  5,  §  1,  that  such  was  the  law,  and  of 
Bracton  and  Lord  Holt  that  the  king  never  was  suable  of  common 
right.  It  is  certain,  however,  that  after  the  establishment  of  the 
petition  of  right  about  that  time,  as  the  appropriate  manner  of  seek- 
ing relief  where  the  ascertainment  of  the  parties'  rights  required  a 
suit  against  the  king,  no  attempt  has  been  made  to  sue  the  king  in 
any  court  except  as  allowed  on  such  petition.  It  is  believed  that  this 
petition  of  right,  as  it  has  been  practiced  and  observed  in  the  admin- 
istration of  justice  in  England,  has  been  as  efficient  in  securing  the 
rights  of  suitors  against  the  crown  in  all  cases  appropriate  to  judicial 


Ch.  8)  ACTIONS   FOR   SPECIFIC   UELIKF.  391 

proceedings,  as  that  which  the  law  affords  in  legal  controversies  be- 
tween the  subjects  of  the  king  among  themselves.  "If  the  mode  of 
proceeding  to  enforce  it  be  formal  and  ceremonious,  it  is,  neverthe- 
less, a  practical  and  efficient  remedy  for  the  invasion  by  the  sovereign 
power  of  individual  rights."  U.  S.  v.  O'Keefe,  11  Wall.  1T8,  30  L. 
Ed.  131. 

There  is  in  this  country,  however,  no  such  thing  as  the  petition  of 
right,  as  there  is  no  such  thing  as  a  kingly  head  to  the  nation,  or  to 
any  of  the  states  which  compose  it.  There  is  vested  in  no  officer  or 
body  the  authority  to  consent  that  the  state  shall  be  sued  except 
in  the  lawmaking  power,  which  may  give  such  consent  on  the  terms 
it  may  choose  to  impose.  The  Davis,  10  Wall.  15,  19  L.  Ed.  875. 
Congress  has  created  a  court  in  which  it  has  authorized  suits  to  be 
brought  against  the  United  States,  but  has  limited  such  suits  to  those 
arising  on  contract,  with  a  few  unimportant  exceptions. 

What  were  the  reasons  which  forbid  that  the  king  should  be  sued 
in  his  own  court,  and  how  do  these  reasons  apply  to  the  political 
body  corporate  which  we  call  the  Unijed  States  of  America?  As 
regards  the  king,  one  reason  given  by  the  old  judg^es  was  the  ab- 
surdity of  the  king's  sending  a  writ  to  himself  to  command  the  king 
to  appear  in  the  king's  court.  No  such  reason  exists  in  our  govern- 
ment, as  process  runs  in  the  name  of  the  president  and  may  be  served 
on  the  attorney  general,  as  was  done  in  the  case  of  Chisholm  v. 
State  of  Georgia,  2  Dall.  419,  1  L.  Ed.  440.  Nor  can  it  be  said  that 
the  dignity  of  the  government  is  degraded  by  appearing  as  a  de- 
fendant in  the  courts  of  its  own  creation,  because  it  is  constantly  ap- 
pear^g  as  a  party  in  such  courts,  and  submitting  its  rights  as  against 
the  citizens  to  their  judgment. 

Mr.  Justice  Gray,  of  the  Supreme  Court  of  Alassachusetts,  in  an 
able  and  learned  opinion  which  exhausts  the  sources  of  information  on 
this  subject,  says :  "The  broader  reason  is  that  it  would  be  incon- 
sistent with  the  very  idea  of  supreme  executive  power,  and  would 
endanger  the  performance  of  tlie  public  duties  of  the  sovereign,  to 
subject  him  to  repeated  suits  as  a  matter  of  right,  at  the  will  of  any 
citizen,  and  to  submit  to  the  judicial  tribunals  the  control  and  dis- 
position of  his  public  property,  his  instruments  and  means  of  carry- 
ing on  his  government  in  war  and  in  peace,  and  the  money  in  his 
treasury."  Briggs  v.  The  Light  Boats,  11  Allen,  162.  As  we  have 
no  person  in  this  government  who  exercises  supreme  executive  power 
or  performs  the  public  duties  of  a  sovereign,  it  is  difficult  to  see  on 
what  solid  foundation  of  principle  the  exemption  from  liability  to 
suit  rests.  It  seems  most  probable  that  it  has  been  adopted  in  our 
courts  as  a  part  of  the  general  doctrine  of  publicists,  that  the  supreme 
power  in  every  state,  wherever  it  may  reside,  shall  not  be  compelled, 
by  process  of  courts  of  its  own  creation,  to  defend  itself  from  assaults 
in  those  courts.      [The  opinion  then  reviews  a  number  of  earlier 


392  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part   2 

American  authorities,  relying  especially  upon  Meigs  v.  McClung's 
Lessee,  9  Cranch,  11,  3  L.  Ed.  639,  and  Osborn  v.  United  States  Bank, 
9  Wheat.  738,  6  L.  Ed.  204.    This  portion  of  the  opinion  is  omitted.] 

Looking  at  the  question  upon  principle,  and  apart  from  the  author- 
ity of  adjudged  cases,  we  think  it  still  clearer  that  this  branch  of  the 
defense  cannot  be  maintained.  It  seems  to  be  opposed  to  all  the  prin- 
ciples upon  which  the  rights  of  the  citizen,  when  brought  in  collision 
with  the  acts  of  the  government,  must  be  determined.  In  such  cases 
there  is  no  safety  for  the  citizen,  except  in  the  protection  of  the 
judicial  tribunals,  for  rights  which  have  been  invaded  by  the  officers 
of  the  government,  professing  to  act  in  its  name.  There  remains  to 
him  but  the  alternative  of  resistance,  which  may  amount  to  crime. 
The  position  assumed  here  is  that,  however  clear  his  rights,  no  rem- 
edy can  be  afforded  to  him  when  it  is  seen  that  his  opponent  is  an 
officer  of  the  United  States,  claiming  to  act  under  its  authority ;  for, 
as  Chief  Justice  Marshall  says,  to  examine  whether  this  authority 
is  rightfully  assumed  is  the  exercise  of  jurisdiction,  and  must  lead 
to  the  decision  of  the  merits  of  the  question.  The  objection  of  the 
plaintiffs  in  error  necessarily  forbids  any  inquiry  into  the  truth  of 
the  assumption  that  the  parties  setting  up  such  authority  are  lawfully 
possessed  of  it,  for  the  argument  is  that  the  formal  suggestion  of 
the  existence  of  such  authority  forbids  any  inquiry  into  the  truth 
of  the  suggestion. 

But  why  should  not  the  truth  of  the  suggestion  and  the  lawful- 
ness of  the  authority  be  made  the  subject  of  judicial  investigation? 
In  the  case  supposed  the  court  has  before  it  a  plaintiff  capable  of  su- 
ing, a  defendant  who  has  no  personal  exemption  from  suit,  and  a 
cause  of  action  cognizable  in  the  court — a  case  within  the  meaning 
of  that  term,  as  employed  in  the  Constitution  and  defined  by  the  de- 
cisions of  this  court.  It  is  to  be  presumed  in  favor  of  the  jurisdic- 
tion of  the  court  that  the  plaintiff'  may  be  able  to  prove  the  right  which 
he  asserts  in  his  declaration.  What  is  that  right  as  established  by 
the  verdict  of  the  jury  in  this  case?  It  is  the  right  to  the  possession 
of  the  homestead  of  plaintiff — a  right  to  recover  that  which  has  been 
taken  from  him  by  force  and  violence,  and  detained  by  the  strong 
hand.  This  right  being  clearly  established,  we  are  told  that  the 
court  can  proceed  no  further,  because  it  appears  that  certain  military 
officers,  acting  under  the  orders  of  the  President,  have  seized  this 
estate,  and  converted  one  part  of  it  into  a  military  fort  and  another 
into  a  cemetery.  It  is  not  pretended,  as  the  case  now  stands,  that 
the  president  had  any  lawful  authority  to  do  this,  or  that  the  legis- 
lative body  could  give  him  any  such  authority  except  upon  payment 
of  just  compensation.  The  defense  stands  here  solely  upon  the  ab- 
solute immunity  from  judicial  inquiry  of  every  one  who  asserts  au- 
thority from  the  executive  branch  of  the  government,  however  clear 
it  may  be  made  that  the  executive  possessed  no  such  power.     Not 


Ch.  8)  ACTIONS  FOR  SPECIFIC   RELIEF.  393 

only  that  no  such  power  is  given,  but  that  it  is  absolutely  prohibited, 
both  to  the  executive  and  the  legislative,  to  deprive  any  one  of  hfe, 
liberty,  or  property  without  due  process  of  law,  or  to  take  private 
property  without  just  compensation. 

These  provisions  for  the  security  of  the  rights  of  the  citizen  stand 
in  the  Constitution  in  the  same  connection  and  upon  the  same  ground 
as  they  regard  his  liberty  and  his  property.  It  cannot  be  denied  that 
both  were  intended  to  be  enforced  by  the  judiciary  as  one  of  the  de- 
partments of  the  government  established  by  that  Constitution.  As 
we  have  already  said,  the  writ  of  habeas  corpus  has  been  often  used 
to  defend  the  liberty  of  the  citizen,  and  even  his  life,  against  the 
assertion   of   unlawful   authority   on   the   part   of   the   executive    and 

ji  the  legislative  branches  of  the  government.  See  Ex  parte  Milligan, 
4  Wall.  2,  18  L.  Ed.  281,  and  the  Case  of  Kilbourn,  discharged  from 
the  custody  of  the  sergeant  at  arms  of  the  House  of  Representatives 
by  Chief  Justice  Carter.  Kilbourn  v.  Thompson,  103  U.  S.  168,  26 
L.  Ed.  377. 

No  man  in  this  country  is  so  high  that  he  is  above  the  law.  No 
officer  of  the  law  may  set  that  law  at  defiance  with  impunity.  All 
the  officers  of  the  government,  from  the  highest  to  the  lowest,  are 
creatures  of  the  law  and  are  bound  to  obey  it.  It  is  the  only  supreme 
power  in  our  system  of  government,  and  every  man  who  by  accept- 
ing office  participates  in  its  functions  is  only  the  more  strongly  bound 
to  submit  to  that  supremacy,  and  to  observe  the  limitations  which 
it  imposes  upon  the  exercise  of  the  authority  v/hich  it  gives. 

Courts  of  justice  are  established,  not  only  to  decide  upon  the  con- 
troverted rights  of  the  citizens  as  against  each  other,  but  also  upon 
rights  in  controversy  between  them  and  the  government,  and  the 
docket  of  this  court  is  crowded  with  controversies  of  the  latter  class. 
Shall  it  be  said,  in  the  face  of  all  this,  and  of  the  acknowledged  right 
of  the  judiciary  to  decide  in  proper  cases,  statutes  which  have  been 
passed  by  both  branches  of  Congress  and  approved  by  the  President 
to  be  unconstitutional,  that  the  courts  cannot  give  remedy  when  the 

j  citizen  has  been  deprived  of  his  property  by  force,  his  estate  seized 
and  converted  to  the  use  of  the  government  without  any  lawful  au- 
thority, without  any  process  of  law,  and  without  any  compensation, 
because  the  President  has  ordered  it  and  his  officers  are  in  posses- 
sion? If  such  be  the  law  of  this  country,  it  sanctions  a  tyranny 
which  has  no  existence  in  the  monarchies  of  Europe,  nor  in  any 
other  government  which  has  a  just  claim  to  well-regulated  liberty  and 
the  protection  of  personal  rights.  It  cannot  be,  then,  that  when  in 
a  suit  between  two  citizens  for  the  ownership  of  real  estate,  one  of 
them  has  established  his  right  to  the  possession  of  the  property  ac- 
cording to  all  the  forms  of  judicial  procedure,  and  by  the  verdict  of 
a  jury  and  the  judgment  of  the  court,  the  wrongful  possessor  can  say 
successfully  to  the  court,  "Stop,  here;   I  hold  by  order  of  the  Presi- 


oOl  KELIEF  AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

(lent,  and  the  progress  of  justice  must  be  stayed."  That,  though 
the  nature  of  the  controversy  is  one  pecuharly  appropriate  to  the 
judicial  function,  though  the  United  States  is  no  party  to  the  suit, 
though  one  of  the  three  great  branches  of  the  government  to  which 
by  the  constitution  this  duty  has  been  assigned  has  declared  its  judg- 
ment after  a  fair  trial,  the  unsuccessful  party  can  interpose  an  absolute 
veto  upon  that  judgment  by  the  production  of  an  order  of  the  Sec- 
retary of  War,  which  that  officer  had  no  more  authority  to  make  than 
the  humblest   private   citizen. 

The  evils  supposed  to  grow  out  of  the  possible  interference  of 
judicial  action  with  the  exercise  of  powers  of  the  government  essen- 
tial to  some  of  its  most  important  operations  will  be  seen  to  be  small 
indeed  compared  to  this  evil,  and  much  diminished,  if  they  do  not 
wholly  disappear,  upon  a  recurrence  to  a  few  considerations.  One 
of  these,  of  no  little  significance,  is  that  during  the  existence  of  the 
government  for  now  nearly  a  century  under  the  present  constitution, 
with  this  principle  and  the  practice  under  it  well  established,  no 
injury  from  it  has  come  to  that  government.  During  this  time  at 
least  two  wars  so  serious  as  to  call  into  exercise  all  the  powers  and 
all  the  resources  of  the  government  have  been  conducted  to  a  success- 
ful issue.  One  of  these  was  a  great  civil  war,  such  as  the  world  has 
seldom  known,  which  strained  the  powers  of  the  national  government 
to  their  utmost  tension.  In  the  course  of  this  war  persons  hostile  to 
the  Union  did  not  hesitate  to  invoke  the  powers  of  the  courts  for  their 
protection  as  citizens  in  order  to  cripple  the  exercise  of  the  authority 
necessary  to  put  down  the  rebellion,  yet  no  improper  interference 
with  the  exercise  of  that  authority  was  permitted  or  attempted  by 
the  courts.  Mississippi  v.  Johnson,  4  Wall.  475,  18  L.  Ed.  437; 
Georgia  v.  Stanton,  6  Wall.  50,  18  L.  Ed.  721 ;  Same  v.  Grant,  6 
Wall.  341,  18  L.  Ed.  848 ;  Ex  parte  Tarble,  13  Wall.  397,  20  L.  Ed. 
597. 

Another  consideration  is  that  since  the  United  States  cannot  be 
made  a  defendant  to  a  suit  concerning  its  property,  and  no  judgment 
in  any  suit  against  an  individual  who  has  possession  or  control  of 
such  property  can  bind  or  conclude  the  government,  as  is  decided  by 
this  court  in  the  case  of  Carr  v.  U.  S.,  98  U.  S.  433,  25  L.  Ed.  209, 
already  referred  to,  the  government  is  always  at  liberty,  notwithstand- 
ing any  such  judgment,  to  avail  itself  of  all  the  remedies  which  the 
law  allows  to  every  person,  natural  or  artificial,  for  the  vindication 
and  assertion  of  its  rights.  Hence,  taking  the  present  case  as  an  il- 
lustration, the  United  States  may  proceed  by  a  bill  in  chancery  to 
quiet  its  title,  in  aid  of  which,  if  a  proper  case  is  made,  a  writ  of 
injunction  may  be  obtained.  Or  it  may  bring  an  action  of  eject- 
ment, in  which,  on  a  direct  issue  between  the  United  States  as  plain- 
tiff and  the  present  plaintiff  as  defendant,  the  title  of  the  United 
States  could  be  judicially  determined.     Or,  if  satisfied  that  its  title 


•Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  395 

has  been  shown  to  be  invahd,  and  it  still  desires  to  use  the  prop- 
erty, or  any  part  of  it,  for  the  purposes  to  which  it  is  now  devoted, 
it  may  purchase  such  property  by  fair  negotiation,  or  condemn  it  by 
a  judicial  proceeding,  in  which  a  just  compensation  shall  be  ascer- 
tained and  paid  according  to  the  constitution. 

If  it  be  said  that  the  proposition  here  established  may  subject  the 
property,  the  officers  of  the  United  States,  and  the  performance  of 
their  indispensable  functions  to  hostile  proceedings  in  the  state  courts, 
the  answer. is  that  no  case  can  arise  in  a  state  court  where  the  in- 
terests, the  property,  the  rights,  or  the  authority  of  the  federal  gov- 
ernment may  come  in  question,  which  cannot  be  removed  into  a  court 
of  the  United  States  under  existing  laws.  In  all  cases,  therefore, 
where  such  questions  can  arise  they  are  to  be  decided,  at  the  option 
of  the  parties  representing  the  United  States,  in  courts  which  are 
the  creation  of  the  federal  government.  The  slightest  consideration 
of  the  nature,  the  character,  the  organization,  and  the  powers  of  these 
courts  will  dispel  any  fear  of  serious  injury  to  the  government  at 
their  hands.  While  by  the  Constitution  the  judicial  department  is 
recognized  as  one  of  the  three  great  branches  among  which  all  the 
powers  and  functions  of  the  government  are  distributed,  it  is  inher- 
ently the  weakest  of  them  all.  Dependent  as  its  courts  are  for  the 
enforcement  of  their  judgments  upon  officers  appointed  by  the  exec- 
utive, and  removable  at  his  pleasure,  with  no  patronage  and  no 
control  of  purse  or  sword,  their  power  and  influence  rests  solely  up- 
on the  public  sense  of  the  necessity  for  the  existence  of  a  tribunal 
to  which  all  may  appeal  for  the  assertion  and  protection  of  rights 
guaranteed  by  the  Constitution  and  by  the  laws  of  the  land,  and  on 
the  confidence  reposed  in  the  soundness  of  their  decisions  and  the 
purity  of  their  motives.  From  such  a  tribunal  no  well-founded  fear 
can  be  entertained  of  injustice  to  the  government  or  purpose  to  ob- 
struct or  diminish  its  just  authority. 

The  Circuit  Court  was  competent  to  decide  the  issues  in  this  case 
before  the  parties  that  were  before  it.  In  the  principles  on  which 
these  issues  were  decided  no  error  has  been  found,  and  its  judgment 
is  affirmed. 

Mr.  Justice  Gray  delivered  a  dissenting  opinion,  in  which  the 
Chief  Justice,  Mr.  Justice  Bradley,  and  Mr.  Justice  Woods  con- 
curred.^ 

3  See  observations  of  Justice  Bradley  in  Carr  v.  United  States,  98  U.  S. 
433,  437,  438,  2.5  L.  Ed.  209  (1878)  ;  Hare,  Constitutional  Law,  lecture  40, 
p.  887. 

Follo\yed :  Tindal  v.  Wesley,  167  U.  S.  204,  17  Sup.  Ct.  770,  42  L.  Ed.  137 
(1897). 

See  Herr  v.  Central  Kentucky  Lunatic  Asylum.  97  Ky.  4.58,  4G2,  30  S.  W. 
971  (28  L.  R.  A.  SM,  53  Am.  St.  Rep.  414)  (1895)  :  "As  a  necessary  conse- 
quence of  exemption  of  the  state  from  suit  without  its  consent,  an  action  nom- 
inally against  an  officer,  but  really  against  the  state,  to  enforce  performance 
of  its  obligation  in  its  political  capacity,  cannot  be  maintained.     But  if  of- 


396  RELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part   2 

SECTION  43.— INJUNCTION— IN  GENERAU 


The  following  brief  report  indicates  the  use  of  injunctions  against 
the  action  of  administrative  authorities  at  an  early  period : 

BOX  V.  ALLEN,  1  Dickens,  49  (April  26,  1727):  "Bill  to  be  re- 
lieved against  an  order  of  the  commissioners  of  sewers.  Demurrer 
to  so  much  of  the  bill  as  sought  to  alter  any  of  the  orders  of  the 
commissioners,  or  to  return  any  money  by  them  received,  for  that 
the  remedy  was  at  law,  and  no  equity  to  be  relieved  in  this  court. 
The  demurrer  was  overruled." 

Generally  speaking,  however,  such  use  is  of  relatively  recent  origin. 
See  Kerrison  v.  Sparrow,  Cooper's  Cases  in  Chancery  temp.  Lord 
Eldon,  305  (1815);  Movers  v.  Smedley,  6  Johns.  Ch.  (N.  Y.)  28 
(1822),  Kent,  Ch. :  "This  is  not  the  case  of  a  private  trust,  but  the 
official  act  of  a  political  body ;  and  in  the  whole  history  of  the  Eng- 
lish Court  of  Chancery  there  is  no  instance  of  the  assertion  of  such 
a  jurisdiction  as  is  now  contended  for." 

In  many  cases  the-  remedy  in  equity  has  been  applied  without  being 
questioned.  See  Cook  Co.  v.  C,  B.  &  O.  R.  Co.,  35  111.  460,  467 ;  C, 
B.  &  Q.  R.  Co.  V.  Cole,  75  111.  591 ;  PorTer  v.  R.,  R.  I.,  etc.,  R.  Co.,  76 
111.  561;  Hersey  v.  Board  of  Supervisors,  37  Wis.  75;  Bank  of 
Utica  V.  Utica,  4  Paige  (N.  Y.)  399,  27  Am.  Dec.  71;  Noble  v. 
Union  River  Logging  R.  R.,  147  U.  S.  165,  13  Sup.  Ct.  271,  37  L. 
Ed.  123,  post,  p.  638  (see  Cruickshank  v.  Bidwell,  176  U.  S.  73,  80, 
20  L.  Ed.  280,  44  L.  Ed.  377) ;  Minnesota  v.  Hitchcock,  185  U.  S. 
373,  22  Sup.  Ct.  650,  46  L.  Ed.  954  (see  Oregon  v.  Hitchcock,  202 
U.  S.  60,  26  Sup.  Ct.  568,  50  L.  Ed.  935). 

fleers  or  agents  of  the  state  invade  private  right  in  a  mode  not  authorized 
by  statute  under  which  they  claim  to  act,  or  if  such  statute  is  invalid,  unques- 
tionably the  person  injured  has  at  least  a  preventive  remedy,  although  the 
state  may  be  affected  by  the  proceeding,  yet  not  a  party  to  it." 

See  Saranac  Land  &  Timber  Co.  v.  Roberts,  195  N.  Y.  303,  88  N.  E.  753 
(1909)  :  "It  may  be  conceded  that  the  state  was  in  possession  through  the 
agency  of  its  forest  commission;  but  nevertheless  an  action  of  ejectment 
brought  against  the  commission  would  be  in  effect  an  action  against  the  state 
itself,  judgment  wherein  would  operate  to  deprive  it  of  the  property  it  had 
acquired  by  purchase." 

As  to  what  constitutes  a  suit  against  the  state,  see,  further,  In  re  Ayers. 
123  U.  S.  443,  501,  8  Sup.  Ct.  l&i,  31  L.  Ed.  216  (1887)  ;  Fitts  v.  McGhee,  172 
U.  S.  516,  19  Sup.  Ct.  269,  43  L.  Ed.  535  (1899);  Ex  parte  Young,  209  U.  S. 
123,  28  Sup.  Ct.  441,  52  L.  Ed.  714,  13  L.  R.  A.  (N.  S.)  932  (1908)  ;  and  an 
article  by  Judge  Jacob  Trieber  in  41  Am.  Law  Review,  p.  844,  on  "Suability 
of  States  by  Individuals  in  the  Courts  of  the  United  States." 

Robertson,  Civil  Proceedings  by  and  against  the  Crown,  p.  .332:  "It  is  clear 
from  the  statements  made  above  that  a  petition  of  right  lies  for  the  recovery 
of  lands,  but  instances  outside  of  the  Year  Rooks  have  not  been  numerous." 


Ch.  8)  ACTIONS  FOR  SPECIFIC   RELIEF.  S^'^ 


SECTION  44.  — SAME  — TO   RESTRAIN    POLITICAL   ACTS 
AND  REMOVAL  FROM  OFFICE 


STATE  OF  GEORGIA  v.  STANTON. 

(Supreme  Court  of  United  States,  1SG7.     6  Wall.  50,  IS  L.  Ed.  721.) 

This  was  a  bill  filed  April  15,  1867,  in  this  court,  invoking  the 
exercise  of  its  original  jurisdiction,  against  Stanton,  Secretary  of 
War,  Grant,  General  of  the  Army,  and  Pope,  Major  General,  assigned 
I  to  command  of  the  Third  military  district,  consisting  of  the  states  of 
Georgia,  Florida  and  Alabama  (a  district  organized  under  the  Act 
of  Congress  of  the  2d  March,  1867,  entitled  "An  act  to  provide 
for  the  more  efficient  government  of  the  rebel  states,"  and  an  act  of 
the  23d  of  the  same  month  supplementary  thereto),  for  the  purpose  of 
restraining  the  defendants  from  carrying  into  execution  the  several 
provisions  of  these  acts,  acts  known  in  common  parlance  as  the  "Re- 
construction Acts."  Both  these  acts  had  been  passed  over  the  Presi- 
dent's veto.     *     *     * 

Nelson,  J.*  -'=  *  *  By  the  second  section  of  the  third  article 
of  the  Constitution  "the  judicial  power  extends  to  all  cases,  in  law 
and  equity,  arising  under  the  Constitution,  the  laws  of  the  United 
States,"  etc.,  and,  as  applicable  to  the  case  in  hand,  "to  controversies 
between  a  state  and  citizens  of  another  state,"  which  controversies, 
under  the  judiciary  act,  may  be  brought,  in  the  first  instance,  before 
this  court  in  the  exercise  of  its  original  jurisdiction;  and  we  agree 
that  the  bill  filed  presents  a  case  which,  if  it  be  the  subject  of  judi- 
cial cognizance,  would,  in  form,  come  under  a  familiar  head  of 
equity  jurisdiction — that  is,  jurisdiction  to  grant  an  injunction  to 
restrain  a  party  from  a  wrong  or  injury  to  the  rights  of  another, 
where  the  danger,  actual  or  threatened,  is  irreparable,  or  the  remedy 
at  law  inadequate.  But,  according  to  the  course  of  proceeding  un- 
I  der  this  head  in  equity,  in  order  to  entitle  the  party  to  the  remedy, 
a  case  must  be  presented  appropriate  for  the  exercise  of  judicial 
power ;  the  rights  in  danger,  as  we  have  seen,  must  be  rights  of  per- 
sons or  property,  not  merely  political  rights,  which  do  not  belong  to 
the  jurisdiction  of  a  court,  either  in  law  or  equity. 

The  remaining  question  on  this  branch  of  our  inquiry  is  whether, 
in  view  of  the  principles  above  stated,  and  which  we  have  endeavored 
to  explain,  a  case  is  made  out  in  the  bill  of  which  this  court  can 
take  judicial  cognizance.  In  looking  into  it,  it  will  be  seen  that  we 
are  called  upon  to  restrain  the  defendants,  who  represent  the  execu- 
tive authority  of  the  government,  from  carrying  into  execution  cer- 

*  Ouly  a  portion  of  the  opinion  is  printed. 


398  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

tain  acts  of  Congress,  inasmuch  as  such  execution  would  annul  and 
totally  abolish  the  existing  state  government  of  Georgia,  and  es- 
tablish another  and  different  one  in  its  place ;  in  other  words,  would 
overthrow  and  destroy  the  corporate  existence  of  the  state,  by  depriv- 
ing it  of  all  the  means  and  instrumentalities  where  by  its  existence 
might,  and  otherwise  would,  be  maintained. 

This  is  the  substance  of  the  complaint,  and  of  the  relief  prayed 
for.  The  bill,  it  is  true,  sets  out  in  detail  the  different  and  substantial 
changes  in  the  structure  and  organization  of  the  existing  govern- 
ment, as  contemplated  in  these  acts  of  Congress,  which,  it  is  charged, 
if  carried  into  effect  by  the  defendants,  will  work  this  destruction. 
But  they  are  grievances,  because  they  necessarily  and  inevitably  tend 
to  the  overthrow  of  the  state  as  an  organized  political  body.  They 
are  stated,  in  detail,  as  laying  a  foundation  for  the  interposition  of 
the  court  to  prevent  the  specific  execution  of  them,  and  the  resulting 
threatened  mischief.  So  in  respect  to  the  prayers  of  the  bill.  The 
first  is  that  the  defendants  may  be  enjoined  against  doing  or  permit- 
ting any  act  or  thing,  within  or  concerning  the  state,  which  is  or  may 
be  directed  or  required  of  them,  by  or  under  the  two  acts  of  Congress 
complained  of;  and  the  remaining  four  prayers  are  of  the  same 
character,  except  more  specific  as  to  the  particular  acts  threatened 
to  be  committed. 

That  these  matters,  both  as  stated  in  the  body  of  the  bill  and 
in  the  prayers  for  relief,  call  for  the  judgment  of  the  court  upon 
political  questions,  and,  upon  rights,  not  of  persons  or  property, 
but  of  a  political  character,  will  hardly  be  denied.  For  the  rights 
for  the  protection  of  which  our  authority  is  invoked  are  the  rights 
of  sovereignty,  of  political  jurisdiction,  of  government,  of  corporate 
existence  as  a  state,  with  all  its  constitutional  powers  and  privi- 
leges. No  case  of  private  rights  or  private  property  infringed,  or 
in  danger  of  actual  or  threatened  infringement,  is  presented  by  the 
bill,  in  a  judicial  form,  for  the  judgment  of  the  court. 

It  is  true  the  bill,  in  setting  forth  the  political  rights  of  the  state 
and  of  its  people  to  be  protected,  among  other  matters,  avers  that 
Georgia  owns  certain  real  estate  and  buildings  therein,  state  capitol 
and  executive  mansion,  and  other  real  and  personal  property,  and 
that  putting  the  acts  of  Congress  into  execution,  and  destroying  the 
state,  would  deprive  it  of  the  possession  and  enjoyment  of  its  prop- 
erty. But  it  is  apparent  that  this  reference  to  property  and  statement 
concerning  it  are  only  by  way  of  showing  one  of  the  grievances 
resulting  from  the  threatened  destruction  of  the  state,  and  in  ag- 
gravation of  it,  not  as  a  specific  ground  of  relief.  This  matter  of 
property  is  neither  stated  as  an  independent  ground  nor  is  it  noticed 
at  all  in  the  prayers  for  relief.  Indeed,  the  case,  as  made  in  the 
bill,  would  have  stopped  far  short  of  the  relief  sought  by  the  state, 
and  its  main  purpose  and  design  given  up,  by  restraining  its  re- 
medial effect  simply  to  the  protection  of  the  title  and  possession  of  its 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  399 

property.  Such  relief  would  have  called  for  a  very  different  bill 
from  the  one  before  us. 

Having  arrived  at  the  conclusion  that  this  court,  for  the  reasons 
above  stated,  possesses  no  jurisdiction  over  the  subject-matter  pre- 
sented in  the  bill  for  relief,  it  is  unimportant  to  examine  the  ques- 
tion as  it  respects  jurisdiction  over  the  parties  defendants.     *     *     * 

Bill  dismissed  for  want  of  jurisdiction.^ 


In  re  SAWYER  et  al. 

(Supreme  Court  of  United  States,  1SS8.     124  U.  S.  200,  8  Sup.  Ct.  482, 

I  31  L.   IZa.  402.) 

Albert  L.  Parsons,  police  judge  of  the  city  of  Lincoln,  Neb.,  had 

I  been  subjected  to  proceedings  on  the  part  of  the  mayor  and  the  city 

I  council  of   said  city  looking  to   his   removal   from  office.      Claiming 

;  that  such  proceedings  violated  the  provisions  of  the  Constitution  of 

'  the   United    States   forbidding  that  any   person   should   be    deprived 

I  of  life,  liberty,  or  property  without  due  process  of  law,  as  well  as 

I.  certain  other  provisions,  he  filed  his  bill  in  equity  in  the  Circuit  Court 

I  of  the  United  States  for  the  District  of  Nebraska,  and  obtained  a  pre- 

j  5  "The  Congress  is  the  legislative  department  of  the  government;  the  Presi- 

j  dent  is  the  executive  department.     Neither  can  be  restrained  in  its  action  by 

the  judicial  department,  though   the  acts  of  both,  when  performed,  are,   in 

j  proper  cases,'  subject  to  its  cognizance.    The  impropriety  of  such  Interference 

j  will  be  clearly  seen  upon  consideration  of  its  possible  consequences.     Suppose 

I  the  bill  filed  and  the  injunction  prayed  for  allowed.     If  the  President  refuse 

j  obedience,  it  is  needless  to  observe  that  the  court  is  without  power  to  enforce 

|i  its  process.     If,  on  the  other  hand,  the  President  complies  with  the  order  of 

jl  the  court  and  refuses  to  execute  the  acts  of  Congress,  is  it  not  clear  that  a 

I  collision  may  occur  between  the  executive  and  legislative  departments  of  the 

!  government?     May  not  the  House  of  Representatives  impeach  the  President 

I  for  such  refusal?     And  in  that  case  could  this  court  interfere,  in  behalf  of 

j  the  President,  thus  endangered  by  compliance  with  its  mandate,  and  restrain 

i  by  injunction  the  Senate  of  the  United  States  from  sitting  as  a  court  of  im- 

!  peachment?    Would  the  strange  spectacle  be  offered  to  the  public  world  of  an 

j  attempt  by  this  court  to  arrest  proceedings  in  that  court?     These  questions 

I  answer  themselves.     It  is  true  that  a  state  may  file  an  original  bill  in  this 

!  court.    And  it  may  be  true,  in  some  cases,  that  such  a  bill  may  be  filed  against 

I  the  United  States.     But  we  are  fully  satisfied  that  this  court  has  no  jurisdic- 

i  tion  of  a  bill  to  enjoin  the  President  in  the  performance  of  his  official  duties, 

;  and  that  no  such  bill  ought  to  be  received  by  us.     It  has  been  suggested  that 

the  bill  contains  a  prayer  that,  if  the  relief  sought  cannot  be  had  against 

I  Andrew  Johnson,  as  President,  it  may  be  granted  against  Andrew  Johnson  as 

'  a  citizen  of  Tennessee.    But  it  is  plain  that  relief  as  against  the  execution  of 

I  an  act  of  Congress  by  Andrew  Johnson  is  relief  against  its  execution  by  the 

I  President.     A  bill  praying  an  injunction  against  the  execution  of  an  act  of 

j  Congress  by  the  incumbent  of  the  presidential  office  cannot  be  received,  wheth- 

I  er  it  describes  him  as  President  or  as  a  citizen  of  a  state.     The  motion  for 

1  leave  to  file  the  bill  is  therefore  denied."     State  of  Mississippi  v.  Johnson,  4 

j  Wall.  475,  500,  18  L.  Ed.  437  (1866). 

t  In  Wisconsin,  the  Supreme  Court  exercises  original  jurisdiction  in  equity 

I  for  the  purpose  of  determining  the  legality  of  the  action  of  the  Secretary  of 

I  State  in  recognizing  one  of  two  rival  factors  as  the  regular  partv  organization. 

i  State  ex  rel.  Cook  v.  Houser,  122  Wis.  534,  100  N.  W.  964  (1904). 


400  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

liniinary  injunction  restraining  the  mayor  and  eleven  members  of 
the  city  council  from  proceeding  further  in  said  matter.  The  mayor 
and  the  council,  in  disregard  of  the  injunction,  proceeded  with  the 
charges,  and  Parsons  was  forcibly  removed  from  office.  The  Cir- 
cuit Court  thereupon  issued  a  rule  to  the  mayor  and  councilmen  to 
show  cause  why  they  should  not  be  attached  for  contempt.  Upon 
hearing,  they  were  adjudged  guilty  of  contempt,  and,,  failing  to  pay 
the  fines  imposed  upon  them,  were  taken  and  held  in  custody  by  the 
marshal.  They  thereupon  petitioned  the  Supreme  Court  of  the  United 
States  for  a  writ  of  habeas  corpus.*^ 

Gray,  J.''  The  question  presented  by  this  petition  of  the  mayor 
and  councilmen  of  the  city  of  Lincoln  for  a  writ  of  habeas  corpus 
is  whether  it  was  within  the  jurisdiction  and  authority  of  the  Cir- 
cuit Court  of  the  United  States,  sitting  as  a  court  of  equity,  to  make 
the  order  under  which  the  petitioners  are  held  by  the  marshal. 

Under  the  Constitution  and  laws  of  the  United  States,  the  distinc- 
tion between  common  law  and  equity,  as  existing  in  England  at  the 
time  of  the  separation  of  the  two  countries,  has  been  maintained, 
although  both  jurisdictions  are  vested  in  the  same  courts.  Fenn  v. 
Holme,  21  How.  481,  484-487,  16  L.  Ed.  198;  Thompson  v.  Rail- 
road Co.,  6  Wall.  134,  18  L.  Ed.  765;  Heine  v.  Levee  Com'rs,  19 
Wall.  655,  22  L.  Ed.  223. 

The  office  and  jurisdiction  of  a  court  of  equity,  unless  enlarged 
by  express  statute,  are  limited  to  the  protection  of  rights  of  prop- 
erty. It  has  no  jurisdiction  over  the  prosecution,  the  punishment,  or 
the  pardon  of  crimes  or  misdemeanors,  or  over  the  appointment  and 
removal  of  public  officers.  To  assume  such  a  jurisdiction,  or  to  sus- 
tain a  bill  in  equity  to  restrain  or  relieve  against  proceedings  for  the 
punishment  of  ofl^enses,  or  for  the  removal  of  public  officers,  is  to 
invade  the  domain  of  the  courts  of  common  law,  or  of  the  execu- 
tive and  administrative  department  of  the  government. 

Any  jurisdiction  over  criminal  matters  that  the  English  Court  of 
Chancery  ever  had  became  obsolete  long  ago,  except  as  incidental  to 
its  peculiar  jurisdiction  for  the  protection  of  infants,  or  under  its 
authority  to  issue  writs  of  habeas  corpus  for  the  discharge  of  persons 
unlawfully  imprisoned.  2  Hale,  P.  C.  147;  Gee  v.  Pritchard,  2 
Swanst.  402,  413;  1  Spence,  Eq.  Jur.  689,  690;  Attorney  General 
V.  Insurance  Co.,  2  Johns.  Ch.  (N.  Y.)  371,  378. 

From  long  before  the  Declaration  of  Independence,  it  has  been 
"  settled  in  England  that  a  bill  to  stay  criminal  proceedings  is  not 
within  the  jurisdiction  of  the  Court  of  Chancery,  whether  those 
proceedings  are  by  indictment  or  by  summary  process. 

Lord  Chief  Justice  Holt,  in  declining,  upon  a  motion  in  the  Queen's 
Bench  for  an  attachment  against  an  attorney   for  professional  mis- 

6  The  statement  of  facts  found  in  the  report  of  this  case  is  omitted,  a  briefer 
summary  thereof  being  substituted  therefor. 

7  Only  a  portion  of  the  opinion  is  printed. 


Ch.  8)  ACTIONS  FOR  SPECIFIC   RELIEF.  401 

conduct,  to  make  it  a  part  of  the  rule  to  show  cause  that  he  should 
not  move  for  an  injunction  in  chancery  in  the  mean  time,  said:  "Sure* 
chancery  would  not  grant  an  injunction  in  a  criminal  matter  under 
examination  in  this  court;  and,  if  they  did,  this  court  would  break 
it,  and  protect  any  that  would  proceed  in  contempt  of  it."  Holder- 
staffe  V.  Saunders,  Holt.  136,  6  Mod.   16. 

Lord  Chancellor  Hardwicke,  while  exercising  the  power  of  the 
Court  of  Chancery,  incidental  to  the  disposition  of  a  case  pending 
before  it,  of  restraining  a  plaintiff  who  had,  by  his  bill,  submitted 
his  rights  to  its  determination,  from  proceeding  as  to  the  same  matter 
before  another  tribunal,  either  by  indictment  or  by  action,  asserted 
in  the  strongest  terms  the  want  of  any  power  or  jurisdiction  to  en- 
tertain a  bill  for  an  injunction  to  stay  criminal  proceedings,  saying: 
"This  court  has  not  originally  and  strictly  any  restraining  power 
over  criminal  prosecutions."  And  again:  "This  court  has  no  ju- 
risdiction to  grant  an  injunction  to  stay  proceedings  on  a  mandamus, 
nor  to  an  indictment,  nor  to  an  information,  nor  to  a  writ  of  pro- 
hibition, that  I  know  of."  Mayor,  etc.,  v.  Pilkington,  2  Atk.  303, 
9  Mod.  273 ;    Montague  v.  Dudman,  2  Ves.  Sr.  396,  398. 

The  modern  decisions  in  England,  by  eminent  equity  judges,  con- 
cur in  holding  that  a  court  of  chancery  has  no  power  to  restrain 
criminal  proceedings,  unless  they  are  instituted  by  a  party  to  a  suit 
already  pending  before  it,  and  to  try  the  same  right  that  is  in  issue 
there.  Attorney  General  v.  Cleaver,  18  Ves.  211,  220;  Turner  v. 
Turner,  15  Jur.  218;  Saull  v.  Browne,  10  Ch.  App.  64;  Kerr  v. 
Preston,  6  Ch.  Div.  463. 

Mr.  Justice  Story,  in  his  Commentaries  on  Equity  Jurisprudence, 
affirms  the  same  doctrine.    2  Story,  Eq.  Jur.  §  893.    And  in  the  Amer- 
ican courts,  so  far  as  we  are  informed,  it  has  been  strictly  and  uni- 
formly upheld,  and  has  been  applied  alike  whether  the  prosecutions 
or  arrests  sought  to  be  restrained  arose  under  statutes  of  the  state, 
or  under  municipal  ordinances.     West  v.  Mayor,  etc.,  10   Paige  (N. 
^;)  539 ;   Davis  v.  American  Soc,  75  N.  Y.  362 ;    Tyler  v.  Hamers- 
ley,  44  Conn.  419,  422,  26  Am.  Rep.  479 ;    Stuart  v.  Board  Sup'rs, 
83  111.  341,  25  Am.  Rep.  397;    Devron  v.  First  Municipality,  4  La. 
'   Ann.  11;    Levy  v.   Shreveport,  27  La.  Ann.  620;    Moses  v.   Mayor, 
i  etc.,  52  Al^.  198;    Gault  v.  Wallis,  53  Ga.  675;    Phillips  v.  Mayor, 
;  etc.,  61  Ga.\386;    Cohen  v.  Goldsboro  Com'rs,  77  N.  C.  2 ;    Oil  Co. 
I  v.  Little  Rodk,  39  Ark.  412;    Spink  v.  Francis   (C.  C.)  19  Fed.  670, 
I  and  20  Fed.  p67 ;   Suess  v.  Noble  (C.  C.)  31  Fed.  855. 
[       It  is  equa/lly  well   settled  that  a  court  of  equity  has  no   jurisdic- 
1  tion  over  the   appointment  and   removal  of   public  officers,   whether 
the  power/of  removal  is  vested,  as  well  as  that  of  appointment,  in 
executive  or  administrative  boards   or  officers,  or   is   intrusted  to   a 
judicial  tribunal.     The  jurisdiction  to  determine  the  title  to  a  public 
office  belongs  exclusively  to  the  courts  of  law,  and  is  exercised  either 
Fe.Adm.Law— 2G 


402  lUCLlKK   AGAINST    ADMINISTRATIVE    ACTION.  (Part    2 

by  certiorari,  error,  or  ai)peal,  or  by  mandanius,  prohibition,  quo 
warranto,  or  information  in  the  nature  of  a  writ  of  quo  warranto,  ac- 
cording" to  the  circumstances  of  the  case,  and  the  mode  of  procechu'c, 
estabhshed  by  the  common  law  or  by   statute. 

No  English  case  has  been  found  of  a  bill  for  an  injunction  to 
restrain  the  appointment  or  removal  of  a  municipal  officer.  But  an 
information  in  the  Court  of  Chancery  for  the  regulation  of  Harrow 
School,  within  its  undoubted  jurisdiction  over  public  charities,  was 
dismissed  so  far  as  it  sought  a  removal  of  governors  unlawful!) 
elected,  Sir  William  Grant  saying:  "This  court,  I  apprehend,  has 
no  jurisdiction  with  regard  either  to  the  election  or  the  amotion  of 
corporators  of  any  description."  Attorney  General  v.  Clarendon,  K 
Ves.  491,  498. 

In  the  courts  of  the  several  states,  the  power  of  a  court  of  equity 
to  restrain  by  injunction  the  removal  of  a  municipal  officer  has  been 
denied  in  many  well-considered  cases. 

Upon  a  bill  in  equity  in  the  Court  of  Chancery  of  the  state  of 
New  York  by  a  lawfully  appointed  inspector  of  flour,  charging  that 
he  had  been  ousted  of  his  office  by  one  unlawfully  appointed  in  his 
stead  by  the  Governor,  and  that  the  new  appointee  was  insolvent, 
and  praying  for  an  injunction,  a  receiver,  and  an  account  of  fees, 
until  the  plaintiff's  title  to  the  office  could  be  tried  at  law,  Vice  Chan- 
cellor McCoun  said :  "This  court  may  not  have  jurisdiction  to  de- 
termine that  question,  so  as  to  render  a  judgment  or  a  decree  of 
ouster  of  the  office."  But  he  overruled  a  demurrer,  upon  the  ground 
that  the  bill  showed  a  prima  facie  title  in  the  plaintiff.  Tappan  v. 
Gray,  3  Edw.  Ch.  (N.  Y.)  450.  On  appeal.  Chancellor  Walwortli 
reversed  the  decree,  "upon  the  ground  that  at  the  time  of  the  filing 
of  this  bill  the  Court  of  Chancery  had  no  jurisdiction  or  power  to 
afford  him  any  relief."  9  Paige,  507,  509,  512.  And  the  chancellor's 
decree  was  unanimously  affirmed  by  the  Court  of  Errors,  upon  Chief 
justice  Nelson's  statement  that  he  concurred  with  the  Chancellor 
respecting  the  jurisdiction  of  courts  of  equity  in  cases  of  this  kind. 
7  Hill,  259. 

The  Supreme  Court  of  Pennsylvania  has  decided  that  an  injunc- 
tion cannot  be  granted  to  restrain  a  municipal  officer  from  exercis- 
ing an  office  which  he  has  vacated  by  accepting  another  office,  or  from 
entering  upon  an  office  under  an  appointment  by  a  town  council,  al- 
leged to  be  illegal;  but  that  the  only  remedy  in  either  case  is  at  law 
bv  quo  warranto.  Hagner  v.  Heyberger,  7  Watts  &  S.  (Pa.)  104, 
42  Am.  Dec.  220 ;   Updegraff  v.  Crans,  47  Pa.  103. 

The  Supreme  Court  of  Iowa,  in  a  careful  opinion  delivered  by 
Judge  Dillon,  has  adjudged  that  the  right  to  a  municipal  office  can- 
not be  determined  in  equity  upon  an  original  bill  for  an  injunction. 
Cochran  v.  McCleary,  22  Iowa,  75. 

In  Delahanty  v.  Warner,  75  111.  185,  20  x\m.  Rep.  237,  it  was  de- 
cided that  a  court  of  chancery  had  no  jurisdiction  to  entertain  a  bill 


Cll.  8)  ACTIONS   FOR   .SrECITIC   UELIEF,  403 

for  an  injunction  to  restrain  the  mayor  and  aldermen  of  a  city  from 
1  unlawfully  removing-  the  plaintifT   from  the   office  of   superintendent 
of  streets,  and  appointing  a  successor ;    but  that  the  remedy  was  at 
law  by  quo  warranto  or  mandamus. 

In  Sheridan  v.  Colvin,  TS  111.  -237,  it  was  held  that  a  court  of  chan- 
I  eery  had  no  jurisdiction  to  restrain  by  injunction  a  city  council 
from  passing-  an  ordinance  unlawfully  abolishing  the  office  of  com- 
I  missioner  of  police ;  and  the  court,  repeating  in  great  part  the  open- 
i  ing  propositions  of  Kerr  on  Injunctions,  said :  "It  is  elementary 
[law  that  the  subject-matter  of  the  jurisdiction  of  a  court  of  chancery 
I  is  civil  property.  The  court  is  conversant  only  with  questions  of 
I  property  and  the  maintenance  of  civil  rights.  Injury  to  property. 
!  whether  actual  or  prospective,  is  the  foundation  on  which  the  juris- 
diction rests.  The  court  has  no  jurisdiction  in  matters  merely  crim- 
j  inal  or  merely  immoral,  which  do  not  alifect  any  right  to  property ; 
,  nor  do  matters  of  a  political  nature  come  within  the  jurisdiction  of 
I  the  Court  of  Chancery;  nor  has  the  Court  of  Chancery  jurisdiction 
I  to  interfere  w-ith  the  duties  of  any  department  of  government,  except 
I  under  special  circumstances,  and  when  necessary  for  the  protection 
jof  rights  of  property."     78   111.   247. 

I  Upon  like  grounds  it  w^as  adjudged  in  Dickey  v.  Reed,  78  111.  261. 
I  that  a  court  of  chancery  had  no  power  to  restrain  by  injunction  a 
board  of  commissioners  from  canvassing  the  results  of  an  election; 
and  that  orders  granting  such  an  injunction,  and  adjudging  the  com- 
imissioners  guilty  of  contempt  for  disregarding  it.  were  wholly  void. 
And  in  Harris  v.  Schryock,  82  111.  119,  the  court,  in  accordance  with 
iits  previous  decisions,  held  that  the  power  to  hold  an  election  was 
'political,  and  not  judicial,  and  therefore  a  court  of  equity  had  no 
lauthority  to  restrain  officers  from  exercising  that  power. 
;  Similar  decisions  have  been  made,  upon  full  consideration,  by  the 
jSupreme  Court  of  Alabama,  overruling  its  own  prior  decisions  to 
[the  contrary.  Beebe  v.  Robinson,  52  Ala.  66 ;  ]\Ioulton  v.  Reid. 
|54  Ala.  320. 

I  The  statutes  of  Nebraska  contain  special  provisions  as  to  the 
jremoval  of  officers  of  a  county  or  of  a  city.  "All  county  officers, 
.including  justices  of  the  peace,  may  be  charged,  tried,  and  removed 
jfrom  office  for  official  misdemeanors"  of  certain  kinds,  by  the  board 
;Df  county  commissioners,  upon  the  charge  of  any  person.  "The  pro- 
ceedings shall  be  as  nearly  like  those  in  other  actions  as  the  nature 
|)f  the  case  admits,  excepting-  where  otherwise  provided  in  this  chap- 
ter." "The  complaint  shall  be  by  an  accuser  against  the  accused, 
jind  shall  contain  the  charg-es  with  the  necessary  specifications  under 
;hem,  and  be  verified  by  the  affidavit  of  any  elector  of  the  state  that  he 
:)elieves  the  charges  to  be  true."  No  formal  answer  or  replication  is 
'■equired,  "but,  if  there  be  an  answer  and  reply,  the  provisions  of  this 
I  the?]  statute  relating  to  pleadings  in  actions  shall  apply."  "The  ques- 
j:ions  of  fact  shall  be  tried  as  in  other  actions,  and,  if  the  accused  is 
I 


404  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part   3 

found  guilty,  judgment  shall  be  entered  removing  the  officer  from  his 
office,  and  declaring  the  latter  vacant,  and  the  clerk  shall  enter  a  copy 
of  the  judgment  in  the  election  book."     Neb.  Comp.  St.  c.  18,  art.  2, 

The  nature  of  this  proceeding  before  county  commissioners  has 
been  the  subject  of  several  decisions  by  the  Supreme  Court  of  the 
state.  In  the  earliest  one  the  court  declared :  "The  proceeding  is 
quasi  criminal  in  its  nature,  and  the  incumbent  undoubtedly  may  be 
required  to  appear  without  delay,  and  show  cause  why  he  should  not 
be  removed.  But  questions  of  fact  must  be  tried  as  in  other  actions, 
and  are  subject  to  review  on  error.  The  right  to  a  trial  upon  distinct 
and  specific  charges  is  secured  to  every  one  thus  charged  with  an 
offense  for  which  he  is  liable  to  be  removed  from  office."  "Neither 
is  it  sufficient  for  the  board  to  declare  and  resolve  that  the  office  is 
vacant.  There  must  be  a  judgment  of  ouster  against  the  incumbent." 
State  V.  Sheldon,  10  Neb.  452,  456,  6  N.  W.  757. 

The  authority  conferred  upon  county  commissioners  to  remove 
county  officers  has  since  been  held  not  to  be  an  exercise  of  strictly 
judicial  power,  within  the  meaning  of  that  provision  of  the  Constitu- 
tion of  Nebraska  which  requires  that  "the  judicial  power  of  this  state 
shall  be  vested  in  a  Supreme  Court,  district  courts,"  and  other  courts 
and  magistrates  therein  enumerated.  Const.  Neb.  art.  6,  §  1 ;  State 
V.  Oleson,  15  Neb.  247,  18  N.  W.  45.  But  it  has  always  been  con- 
sidered as  so  far  judicial  in  its  nature  that  the  order  of  the  county | 
commissioners  may  be  reviewed  on  error  in  the  district  court  of  the,' 
county,  and  ultimately  in  the  supreme  court  of  the  state.  State  v. 
*Sheldon,  above  cited;  Minkler  v.  State,  14  Neb.  181,  15  N.  W.  330; 
State  V.  Meeker,  19  Neb.  444,  448,  27  N.  W.  427.  See,  also,  Railroad 
V.  Washington  Co.,  3  Neb.  30,  41 ;  Code  Civ.  Proc.  Neb.  §§  580-584, 
599 ;    Crim.  Code,  (Ed.  1885,)  §  572. 

This  view  does  not  substantially  dift'er  from  that  taken  in  other 
states,  where  similar  orders  have  been  reviewed  by  writ  of  certiorari, 
as  proceedings  of  an  inferior  tribunal  or  board  of  officers,  not  com- 
missioned as  judges,  yet  acting  judicially,  and  not  according  to  the 
course  of  the  common  law.  Charles  v.  Mayor,  etc.,  27  N.  J.  Law, 
203 ;  People  v.  Fire  Com'rs,  72  N.  Y.  445 ;  Donahue  v.  County  of 
Will,  100  111.  94. 

In  Nebraska,  as  elsewhere,  the  validity  of  the  removal  of  a  public 
officer,  and  the  title  of  the  person  removed,  or  of  a  new  appointee,  to 
the  office,  may  be  tried  by  quo  warranto  or  mandamus.  Comp.  St. 
Neb.  c.  19,  §§  13,  24;  Id.  c.  71;  Code  Civ.  Proc.  §§  645,  704;  Cases 
of  Sheldon,  Oleson,  and  Meeker,  above  cited;  Queen  v.  Saddlers' 
Co.,  10  H.  L.  Cas.  404;   Osgood  v.  Nelson,  L.  R.  5  H.  L.  636.  *  *  * 

The  whole  object  of  the  bill  in  equity  filed  by  Parsons,  the  police 
judge  of  the  city  of  Lincoln,  against  the  mayor  and  councilmen  of  the 
city,  upon  which  the  Circuit  Court  of  the  United  States  made  the  or- 
der for  the  disregard  of  which  they  are  in  custody,  is  to  prevent  his  re- 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  405 

moval  from  the  office  of  police  judge.    No  question  of  property  is  sug- 

■  gested  in  the  allegations  of  matters  of  fact  in  the  bill,  or  would  be  in- 
volved in  any  decree  that  the  court  could  make  thereon. 

The  case  stated  in  the  bill  is  that  charges  in  writing  against  Par- 
sons for  appropriating  to  his  own  use  moneys  of  the  city  were  filed,  as 
required  by  the  original  ordinance,  by  Sheedy  and  Saunders  (Hyatt, 
j  not  otherwise  named  in  those  charges,  would   seem  to  have   signed 
;  them  as  the  additional  witness  required  by  that  ordinance)  ;    that  the 
'  charges  were  referred  by  the  mayor  to  a  committee  of  three  members 

■  of  the  council ;  that  upon  notice  to  the  accused,  and  his  appearance 
[  before  that  committee,  he  objected  that  the  committee  had  no  author- 
I  ity  to  try  the  charges,  and  the  committee  so  reported  to  the  council ; 
I  that  thereupon  Sheedy  and  Saunders  procured  the  passage  of  the 
I  amended  ordinance,  giving  a  committee,  instead  of  the  whole  council, 
i  power  to  try  the  charges,  and  report  its  finding  to  the  council;  that  aft- 
I  er  the  passage  of  this  ordinance,  and  against  his  protest,  the  committee 
'  resumed  the  trial,  and,  in  order  to  favor  and  protect  his  accusers,  and 
I  fraudulently  to.  obtain  his  removal  from  office,  made  a  report  to  the 
!  city  council,  falsely  stating  that  they  reported  all  the  evidence,  and 
I  fraudulently  suppressing  a  book  which  he  had  offered  in  evidence,  and 
I  finding  him  guilty,  and  recommending  that  his  office  be  declared 
;  vacant,  and  be  filled  by  the  appointment  of  some  other  person ;  and 
i  that  the  mayor  and  city  council  set  the  matter  down  for  final  vote 
j  at  a  future  day  named,  and  threatened  and  declared  that  they  would 
I  then,  without  hearing  or  reading  the  evidence  taken  before  the  com- 
mittee, declare  the  office  vacant,  and  appoint  another  person  to  fill  it. 

,  The  bill  prays  for  an  injunction  to  restrain  the  mayor  and  council - 
I  men  of  the  city  of  Lincoln  from  proceeding  any  further  with  the 
I  charges  against  Parsons,  or  taking  any  vote  on  the  report  of  the  com- 
i  mittee,  or  declaring  the  office  of  police  judge  vacant,  or  appointing 
t  any  person  to  fill  that  office.     *     *     * 

I  It  has  been  contended  by  both  parties,  in  argument,  that  the  pro- 
I  ceeding  of  the  city  council  for  the  removal  of  Parsons  upon  the 
i  charges  filed  against  him  is  in  the  nature  of  a  criminal  proceeding ; 
I  and  that  view  derives  some  support  from  the  judgment  of  the  Supreme 
i  Court  of  Nebraska  in  State  v.  Sheldon,  10  Neb.  452,  456,  6  N.  W. 
i  757,  before  cited.  But,  if  the  proceeding  is  of  a  criminal  nature, 
I  it  is  quite  clear,  for  the  reasons  and  upon  the  authorities  set  forth  in 
'  the  earlier  part  of  this  opinion,  that  the  case  stated  in  the  bill  is  wholly 
;  without  the  jurisdiction  of  any  court  of  equity. 

If  those  proceedings  are  not  to  be  considered  as  criminal  or  quasi 
I  criminal,  yet  if,  by  reason  of  their  form  and  object,  and  the  acts 
i  of  the  Legislature  and  decisions  of  the  courts  of  Nebraska  as  to  the 
j  appellate  jurisdiction  exercised  in  such  cases  by  the  judicial  power  of 
'  the  state,  they  are  to  be  considered  as  proceedings  in  a  court  of  the 
I  state  (of  which  we  express  no  decisive  opinion),  the  restraining  order 
(  of  the  Circuit  Court  was  void,  because  in  direct  contravention  of  the 


406  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

peremptory  enactment  of  Congress  that  the  writ  of  injunction  shall 
not  be  granted  by  any  court  of  the  United  States  to  stay  proceedings 
in  any  court  of  a  state,  except  when  authorized  by  a  bankrupt  act. 
Act  March  2,  1793,  c.  22,  §  5  (1  St.  335) ;  Diggs  v.  Walcott,  4  Cranch, 
179,  2  L.  Ed.  587;  Peck  v.  Jenness.  7  How.  612,  G25,  12  L.  Ed.  841; 
Rev.  St.  §  720  (U.  S.  Comp.  St.  1901,  p.  581)  ;  Watson  v.  Jones,  13 
Wall.  679,  719,  20  L.  Ed.  66G  ;  Haines  v.  Carpenter,  91  U.  S.  254, 
23  L.  Ed.  345;  Dial  v.  Reynolds,  96  U.  S.  340,  24  L.  Ed.  041;  Sar- 
gent V.  Helton,  115  U.  S.  348,  6  Sup.  Ct.  78,  29  L.  Ed.  412. 

But  if  those  proceedings  are  to  be  considered  as  neither  criminal 
nor  judicial,  but  rather  in  the  nature  of  an  official  inquiry  by  a  mu- 
nicipal board  intrusted  by  law  with  the  administration  and  regulation 
of  the  affairs  of  the  city,  still,  their  only  object  being  the  removal  of 
a  public  officer  from  his  office,  they  are  equally  beyond  the  jurisdiction 
and  control  of  a  court  of  equity. 

The  reasons  which  preclude  a  court  of  equity  from  interfering  with 
the  appointment  or  removal  of  public  officers  of  the  government  from 
which  the  court  derives  its  authority  apply  with  increased  force  wlten 
the  court  is  a  court  of  the  United  States,  and  the  officers  in  question 
are  officers  of  a  state.  If  a  person  claiming  to  be  such  an  officer  is,  by 
the  judgment  of  a  court  of  the  state,  either  in  appellate  proceedings  or 
upon  a  mandamus  or  quo  warranto,  denied  any  right  secured  to  him 
by  the  Constitution  of  the  United  States,  he  can  obtain  relief  by  a  writ 
of  error  from  this  court. 

In  any  aspect  of  the  case,  therefore,  the  Circuit  Court  of  the  United 
States  was  without  jurisdiction  or  authority  to  entertain  the  bill  in 
equity  for  an  injunction.  As  this  court  has  often  said:  "Where  a 
court  has  jurisdiction,  it  has  a  right  to  decide  every  question  which 
occurs  in  the  cause;  and,  whether  its  decision  be  correct  or  other- 
wise, its  judgment,  until  reversed,  is  regarded  as  binding  in  every 
other  court;  but,  if  it  act  without  authority,  its  judgments  and  orders 
are  regarded  as  nullities.  They  are  not  voidable,  but  simply  void." 
Elliott  V.  Peirsol,  1  Pet.  328,  340,  7  L.  Ed.  164;  Wilcox  v.  Jack- 
son, 13  Pet.  498,  511,  10  L.  Ed.  264;  Hickey  v.  Stewart,  3  How. 
750,  762,  11  L.  Ed.  811;  Thompson  v.  W^hitman,  18  Wall.  457,  467, 
21  E.  Ed.  897. 

We  do  not  rest  our  conclusion  in  this  case,  in  any  degree,  upon  the 
ground,  suggested  in  argument,  that  the  bill  does  not  show  a  matter 
in  controversy  of  sufficient  pecuniary  value  to  support  the  jurisdiction 
of  the  Circuit  Court,  because  an  apparent  defect  of  its  jurisdiction 
in  this  respect,  as  in  that  of  citizenship  of  parties,  depending  upon  an 
inquiry  into  facts  which  might  or  might  not  support  the  jurisdic- 
tion, can  be  availed  of  only  by  appeal  or  writ  of  error,  and  does  not 
render  its  judgment  or  decree  a  nullity.  Prigg  v.  Adams,  2  Salk. 
674,  Carth.  274;  Fisher  v.  Bassett,  9  Leigh  (Va.)  119,  131-133,  33 
Am.  Dec.  227  ;  Navigation  Co.  v.  Homestead  Co.,  123  U.  S.  552,  8 
Sup.  Ct.  217,  31  E.  Ed.  202.     Neither  do  we  say  that,  in  a  case  be- 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  407 

longing  to  a  class  or  subject  which  is  within  the  jurisdiction  both  of 
courts  of  equity  and  of  courts  of  law,  a  mistake  of  a  court  of  equity, 
in  deciding  that  in  the  particular  matter  before  it  there  could  be  no 
full,  adequate,  and  complete  remedy  at  law,  will  render  its  decree 
absolutely  void. 

But  the  ground  of  our  conclusion  is,  that  whether  the  proceedings 
of  the  city  council  of  Lincoln  for  the  removal  of  the  police  judge, 
upon  charges  of  misappropriating  moneys  belonging  to  the  city,  are 
to-  be  regarded  as  in  their  nature  criminal  or  civil,  judicial  or  merely 
administrative,  they  relate  to  a  subject  which  the  Circuit  Court  of 
the  United  States,  sitting  in  equity,  has  no  jurisdiction  or  power  over, 
and  can  neither  try  and  determine  for  itself,  nor  restrain  by  injunction 
the  tribunals  and  officers  of  the  state  and  city  from  trying  and  deter- 
mining. The  case  cannot  be  distinguished  in  principle  from  that  of  a 
judgment  of  the  common  bench  in  England  in  a  criminal  prosecution, 
which  was  coram  non  judice,  or  the  case  of  a  sentence  passed  by  the 
Circuit  Court  of  the  United  States  upon  a  charge  of  an  infamous 
crime,  without  a  presentment  or  indictment  by  a  grand  jury.  Case 
of  the  Marshalsea,  5  [10]  Coke,  G8,  TG ;  Ex  parte  Wilson,  114  U. 
S.  417,  5  Sup.  Ct.  935,  29.  L.  Ed.  89 ;  Ex  parte  Bain,  121  U.  S.  1, 
r  Sup.  Ct.  781,  30  E.  Ed.  849. 

The  Circuit  Court  being  without  jurisdiction  to  entertain  the  bill 
in  equity  for  an  injunction,  all  its  proceedings  in  the  exercise  of  the 
jurisdiction  which  it  assumed  are  null  and  void.  The  restraining 
order,  in  the  nature  of  an  injunction  it  had  no  power  to  make.  The 
adjudication  that  the  defendants  were  guilty  of  a  contempt  in  disre- 
garding that  order  is  equally  void,  their  detention  by  the  marshal 
under  that  adjudication  is  without  authority  of  law,  and  they  are 
entitled  to  be  discharged.  Ex  parte  Rowland,  104  U.  S.  604,  26  h. 
Ed.  861;  Ex  parte  Fisk,  113  U.  S.  713,  5  Sup.  Ct.  724,  28  L.  Ed. 
1117;  In  re  Ayers,  123  U.  S.  443,  507,  8  Sup.  Ct.  164,  31  L.  Ed. 
216. 

Writ  of  habeas  corpus  to  issue. 

Waite,  C.  J.  (dissenting).  I  am  not  prepared  to  decide  that  an 
officer  of  a  municipal  government  cannot,  under  any  circumstances, 
apply  to  a  court  of  chancery  to  restrain  the  municipal  authorities  from 
proceeding  to  remove  him  from  his  office  without  the  authority  of 
law.  There  may  be  cases,  in  my  opinion,  when  the  tardy  remedies 
of  quo  warranto,  certiorari,  and  other  like  writs  will  be  entirely  in- 
adequate. I  can  easily  conceive  of  circumstances  under  which  a  re- 
moval, even  for  a  short  period,  would  be  productive  of  irremediable 
mischief.  Such  cases  may  rarely  occur,  and  the  propriety  of  such  an 
application  may  not  often  be  seen;  but  if  one  can  arise,  and  if  the 
exercise  of  the  jurisdiction  can  ever  be  proper,  the  proceedings 
of  the  court  in  due  course  upon  a  bill  filed  for  such  relief  will  not  be 
void,  even  though  the  grounds  on  which  it  is  asked  may  be  insuffi- 
cient.    If  the  court  can  take  jurisdiction  of  such  a  case  under  any 


408  KKLIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    "3 

circumstances,  it  certainly  must  be  permitted  to  inquire,  when  a  bill 
of  that  character  is  filed,  whether  the  case  is  one  that  entitles  the 
party  to  the  relief  he  asks,  and,  if  necessary  to  prevent  wrong-  in 
the  meantime,  to  issue  in  its  discretion  a  temporary  restraining  order 
for  that  purpose.  Such  an  order  will  not  be  void,  even  though  it 
may  be  found  on  examination  to  have  been  improvidently  issued. 
While  in  force  it  must  be  obeyed,  and  the  court  will  not  be  without 
jurisdiction  to  punish  for  its  contempt. 

Such,  in  my  opinion,  was  this  case,  and  I  therefore  dissent  from 
the  judgment  which  has  been  ordered.^ 


SECTION  45.— SAME— TO   RESTRAIN  ENFORCEMENT   OF 
ORDINANCES 


CITY  OF  CHICAGO  v.  CHICAGO  CITY  RY.  CO. 

(Supreme  Court  of  Illinois.  11X)G.     222  111.   500.  78  N.  E.  890.) 

Bill  by  the  Chicago  City  Railway  Company  and  others  against  the 
City  of  Chicago  to  enjoin  the  enforcement  of  a  city  ordinance  and  to 
restrain  the  prosecution  of  certain  suits  for  the  recovery  of  penalties. 
From  a  decree  in  favor  of  complainants,  defendant  appeals.  Bill 
dismissed. 

CartwrigiiT,  J.''  On  October  2:1,  190-"),  the  city  council  of  the  city 
of  Chicago,  appellant,  passed   an  ordinance  amending  sections    1!)-">.S 

8  Accord:  White  v.  Berry,  171  U.  S.  odC,  IS  Sup.  Ct.  017.  4:5  L.  Ed.  IW.) 
(1898K 

As  to  the  development  of  the  legal  conception  of  office,  changing  from  <i 
property  rig'ht  to  a  public  function  or  position  under  the  gDvernnient,  consti- 
tuting neither  property  nor  contract,  see  the  following  aiithorities : 

Blackstone's  Commentaries.  II,  .^G,  otiice  one  of  incorporeal  hereditaments; 
St.  .")  &  6  Edw.  IV,  c.  16,  offices  concerning  justice  and  revenue  may  not  lie 
sold,  extended  to  all  offices  by  St.  49  Geo.  Ill,  c.  326;  Coke,  Littleton,  3G,  gi-ant 
of  office  concerning  justice,  revenue,  commonwealth,  or  benefit  of  subject,  void 
if  to  an  incompetent  person;  Coke,  Littleton,  S  378,  in  an  office  concerning  the 
conunonwealth  it  is  a  condition  in  law  that  it  be  lawfully  kept;  Reyuers 
Case,  9  Coke  Rep.  95a  (IGll),  a  judicial  office  not  grantable  for  years,  simo 
otherwise  it  might  vest  in  an  executor. 

Officers  appointed  durante  bene  placito,  (revenue  officer's,)  St.  14  Rich.  If,  c. 
1.  As  to  other  royal  appointments,  see  Smyth  v.  Latham,  9  Bing.  694  (1833) ; 
Shenton  v.  Smith  [1895]  App.  Cas.  229,  235. 

Cch-porate  officers,  inherent  power  of  amotion.  Rex.  v.  Richardson,  1  Burr. 
517  (17.58). 

American  theory:  Hoke  v.  Henderson,  15  N.  O.  1,  25  Am.  Dec.  677  (18."^^)  : 
Butler  V.  Pennsylvania,  10  How.  402,  13  L.  Ed.  472  (18.50)  ;  Wilson  v.  North 
Carolina,  169  U.  S.  586,  18  Sup.  Ct.  435.  42  L.  Ed.  865  (1898) ;  Taylor  v.  Beck- 
ham. 178  U.  S.  548,  20  Sup.  Ct.  890,  1009,  44  L.  Ed.  1187  (1900). 

9  (July  a  portion  of  the  oiiiniou  is  printed. 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  409 

and  1959  of  the  Revised  Municipal  Code  of  the  city,  so  as  to  read  as 
follows:  [Here  follows  the  text  of  the  ordinance,  which  makes 
certain  provisions  for  the  comfort  and  safety  of  passengers  on  street 
cars.] 

The  Chicago  City  Railway  Company  and  the  receivers  of  the 
Chicago  Union  Traction  Company,  appellees,  filed  their  bill  in  this 
case  in  the  circuit  court  of  Cook  county  praying  the  court  to  enjoin 
appellant  from  enforcing  said  ordinance  so  far  as  it  is  designed  to 
compel  them  to  furnish  a  sufficient  number  of  cars  to  carry  passengers 
comfortably  and  without  overcrowding,  from  prosecuting  suits 
against  them  to  enforce  the  payment  of  any  penalty  for  any  alleged 
violation  of  the  provision  in  question,  and  from  bringing  any  fur- 
ther suits  or  taking  any  steps  or  proceeding  whatsoever  thereunder. 

The  amended  bill  alleges  that  the  provision  requiring  the  appellees 
to  furnish  a  sufficient  number  of  cars  to  carry  passengers  comfortably 
and  without  overcrowding  is  void  on  three  grounds,  which  are  stated 
by  their  counsel  in  their  brief  and  argument,  as  follows:  "(1)  That 
it  is  in  violation  of  paragraph  96,  art.  5,  Cities  and  Villages  Act 
(Kurd's  Rev.  St.  1905,  c.  24,  §  G2),  which  provides  that  'no  fine 
or  penalty  shall  exceed  $200  for  a  single  offense,'  and  also  section 
11  of  article  2  of  the  Constitution,  which  provides  that  'penalties 
shall  be  proportioned  to  the  nature  of  the  offense.'  (2)  That  it  is 
uncertain,  in  that  it  does  not  sufficiently  define  the  offense  for  which 
its  multiplied  penalties  are  imposed,  and  is  for  that  reason  void.  (3) 
That  it  is  unreasonable,  and  therefore  void.'' 

The  circuit  court  overruled  appellant's  demurrer  to  the  bill  as 
amended,  and,  appellant  having  elected  to  stand  by  the  demurrer,  the 
court  entered  a  final  decree  finding  that  said  provision  of  the  ordinance 
is  "Void,  and  enjoining  appePlant  from  enforcing  or  attempting  to 
enforce  the  same,  and  from  further  prosecuting  suits  brought  against 
the  appellees. 

The  material  facts  alleged  in  the  amended  bill  and  admitted  by  the 
demurrer  are :  That  before,  and  at  the  time  of,  the  passage  of  the 
ordinance  the  Chicago  City  Railway  Company,  one  of  the  complain- 
ants maintained  and  operated  220  miles  of  street  railway  on  the 
streets  in  the  south  division  of  the  city  of  Chicago;  that  the  receivers 
of  the  Chicago  Union  Traction  Company,  the  other  complainant, 
maintained  and  operated  303.93  miles  of  street  railway  on  the  streets 
in  the  north  and  west  divisions  of  the  city,  with  terminal  connections 
in  the  south  division ;  that  the  business  center  of  the  city  is  in  the 
south  division,  in  what  is  known  as  the  "down-town  loop";  that 
complainants  are  the  only  surface  street  railways  serving  the  city  of 
Chicago,  except  12  other  lines  of  surface  street  railway  operating  in 
outlying  districts  and  not  owning  down-town  terminals ;  that  com- 
plainants furnish  transportation  for  more  than  2,000,000  people,  and 
for  almost  all  the  population  of  the  city;  that  it  is,  and  has  been, 
the  custom  to  permit  passengers  to  stand  in  the  aisles  and  on   the 


410  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

])lat forms,  and  all  street  cars  are  provided  with  straps  and  other  de- 
vices to  accommodate  standing  passengers ;  that  complainants  have 
made  etYorts  to  procure  additional  cars,  but  they  can  only  be  obtained 
by  placing  orders  with  street  car  builders  and  manufacturers  from 
three  to  four  months  before  the  order  can  be  filled ;  that  during 
the  rush  hours  of  the  day  it  is  impossible  to  prevent  congestion  of 
travel  in  the  business  center ;  that  congestion  and  disturbances  are 
caused  by  various  conditions  set  out  in  the  bill ;  and  that  the  ordi- 
nance is  unreasonable,  and  therefore  void  as  applied  to  complainants, 
because  it  is  impossible  for  them  to  comply  with  it.  The  bill  alleges 
that  60  suits  have  been  brought  against  the  Chicago  City  Railway 
Company  by  the  defendant  before  a  justice  of  the  peace;  that  100 
like  suits  have  been  brought  against  the  receivers ;  that  a  suit  in 
debt  has  been  brought  against  each  complainant  in  the  circuit  court, 
and  in  each  suit  the  declaration  contains  25  counts  for  violations  of 
the  ordinance;  and  that  the  city  intends  to  bring  numerous  other 
suits  for  like  violations. 

The  efforts  of  counsel  for  appellees,  in  their  brief  and  argument, 
are  directed  to  giving  such  an  interpretation  to  the  ordinance  as  to 
render  it  void.  They  contend  that  it  imposes  a  penalty  of  not  less 
than  $25  nor  more  than  $100  daily  for  each  one  of  the  thousands  of 
cars  operated  by  them,  respectively,  in  case  one  car  is  overcrowded, 
and  therefore  the  penalty  exceeds  $200  for  one  offense  and  is  not 
proportioned  to  the  nature  of  the  offense ;  that  there  is  such  uncer- 
tainty in  the  meaning  of  the  words  "comfortably"  and  "overcrowd- 
ing" that  the  ordinance  is  void  on  that  account ;  and  that  under  the 
facts  alleged  in  the  bill  the  provision  in  question  is  unreasonable,  and 
therefore  void.  The  ground  upon  which  they  say  that  a  court  of 
equity  ought  to  intervene  and  prevent  enforcement  of  the  ordinance 
is  that  these  two  complainants  are  members  of  a  class,  and  that  a 
multiplicity  of  suits  will  thereby  be  prevented.  •  Counsel  for  appellant/v 
deny  that  the  provision  of  the  ordinance  in  question  is  void  for  any 
of  the  reasons  assigned.  They  contend  that  the  provision  is  a  valid 
exercise  of  the  police  power ;  that  it  was  enacted  in  the  interest  of 
the  public  health,  safety,  and  welfare;  that  the  prosecutions  under 
it  are  of  a  criminal  or  quasi  criminal  nature ;  and  that  equity  has 
no  jurisdiction  to  enjoin  the  prosecution  of  suits  of  that  nature. 

It  is  settled  beyond  controversy  that  a  court  of  equity  has  no  juris- 
diction to  interfere  with  prosecutions  for  criminal  offenses,  and  it  makes 
no  difference  whether  the  prosecution  is  under  a  statute  which  ap- 
plies to  the  state  at  large  or  under  an  ordinance  which  is  in  force  only 
in  a  particular  municipality.  Courts  of  equity  deal  only  with  civil 
and  property  rights,  and  their  powers  do  not  extend  to  determining 
what  laws  or  ordinances  are  valid  or  invalid  unless  such  determina- 
tion is  incidental  to  the  protection  of  rights  recognized  by  courts  of 
equity  alone.     *     *     * 


Ch.  8)  ACTIONS   FOR   SPECIFIC    IUn>IEF.  411 

In  the  bill  in  this  case  no  facts  are  stated  which  would  constitute 
an  irreparable  injury  to  complainants.  Many  suits  have  been  in- 
stituted, but  the  imposition  of  many  penalties  for  many  violations  of 
an  ordinance  does  not  amount  to  irreparable  injury.  An  offender 
cannot,  by  multiplying  his  offense,  invoke  the  aid  of  a  court  of  equity. 
Moses  V.  Mayor  of  Mobile,  52  Ala.  198.  If  a  court  could  take  ju- 
risdiction of  a  bill  to  declare  an  ordinance  void  because  of  the  numer- 
ous prosecutions  under  it,  a  complainant  would  be  able  to  confer  ju- 
risdiction by  repeating  his  offense,  and  of  course  that  could  not  be 
so.  The  fact  that  a  great  many  suits  had  been  brought  against  a 
single  party  was  regarded  as  a  sufficient  cause  for  enjoining  the  prose- 
cution of  all  the  suits  but  one  in  the  case  of  Third  Avenue  Railroad 
Co.  V.  Mayor  of  New  York,  54  N.  Y.  159.  The  city  had  brought  77 
suits  in  a  justice's  court  to  recover  penalties  for  violating  city  ordi- 
nances concerning  the  running  of  cars  without  a  license.  The  rail- 
road company  brought  its  suit  to  secure  an  injunction  against  all 
of  the  suits  except  one,  and  oft'ered  to  abide  the  final  decision  of  that 
one.  The  relief  was  granted  upon  the  ground  that  a  justice's  court 
had  no  power  to  consolidate  the  actions. 

But  this  court  held  a  different  doctrine  in  the  case  of  Chicago, 
Burlington  &  Quincy  Railroad  Co.  v.  City  of  Ottawa,  148  111.  397, 
36  N.  E.  85.  In  that  case  there  were  prosecutions  before  a  justice 
of  the  peace  for  violations  of  an  ordinance,  and  appeals  were  taken 
from  judgments  rendered.  Ten  other  suits  were  begun,  returnable 
on  successive  days,  Sundays  excepted,  and  the  prayer  of  the  bill  was 
that  the  defendant  be  restrained  from  prosecuting  under  the  ordi- 
nance, and  for  a  temporary  writ  restraining  the  city  from  prosecuting 
any  other  suits  except  the  two  then  pending  on  appeal  in  the  circuit 
court.  The  court  held  that  every  question  arising  in  the  suits  could 
be  settled  and  determined  on  the  trial  of  a  case  in  the  circuit  court, 
which  was  entirely  competent  to  decide  whether  the  ordinance  was 
valid  or  not,  and  that  the  circuit  court  was  right  in  refusing  to  en- 
join the  prosecution  of  any  of  the  suits.  In  this  case  all  the  ques- 
tions can  be  finally,  settled  in  an  action  of  debt  in  the  circuit  court, 
or  upon  appeal  from  a  justice's  judgment.  Even  if  the  controversy 
would  not  be  finally  settled  in  one  suit  against  each  complainant,  this 
bill  could  not  be  maintained  on  the  ground  that  it  is  a  bill  of  peace 
to  put  an  end  to  unnecessary  and  vexatious  litigation.  In  such  a 
case  the  rights  of  the  parties  must  be  finally  adjudicated  in  a  court 
of  law.  In  cases  where  one  judgment  is  not  conclusive  in  a  subse- 
quent suit,  equity  will  sometimes  interfere  to  prevent  litigation  which 
has  become  useless  and  unavailing,  but  the  question  must  first  be 
determined  in  at  least  one  action  at  law.  The  court  will  never  en- 
tertain a  bill  of  peace  so  long  as  the  right  of  the  complainant  is  un- 
certain. 

There  are  cases  in  which  a  court  of  equity  will  interfere  to  en- 
join the  enforcement  of  an  ordinance   for  the   reason  that  a  multi- 


412  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

plicity  of  suits  will  be  prevented  thereby,  and  it  is  argued  that  this 
is  such  a  case.  The  bill  is  filed  by  two  complainants,  who  say  that 
they  also  ask  relief  for  all  others  similarly  situated.  The  facts  stated, 
however,  do  not  show  that  any  other  persons  or  corporations  are 
similarly  situated.  It  appears  from  the  bill  that  the  complainants 
serve  practically  the  whole  city  of  Chicago ;  that  the  population 
served  by  them  is  upwards  of  2,000,000 ;  and  that,  with  the  exception 
of  12  other  lines  operating  in  outlying  districts  and  not  owning  down- 
town terminals,  they  are  the  only  persons  or  corporations  furnish- 
ing street  railway  transportation.  It  does  not  appear  that  the  few 
other  persons  or  corporations  operating  in  outlying  and  sparsely  set- 
tled districts  do  not  furnish  a  sufficient  number  of  cars,  or  that  there 
is  any  necessity  in  such  districts  for  overcrowding,  or  that  overcrowd- 
ing cars  is  permitted,  or  that  any  prosecution  has  been  begun  or 
threatened  against  any  other  person  or  corporation,  or  that  any  other 
person  or  corporation  has  suffered,  or  will  sufifer,  any  hardship,  or 
make  any  complaint  whatever  of  the  ordinance  or  its  provisions.  The 
case  is  not  at  all  like  one  where  a  license  is  required  for  carrying 
on  an  occupation  or  business,  where  the  inference  is  that  those  en- 
gaged in  the  occupation  or  business  will  be  required  to  procure  the 
license  and  pay  the  fee  therefor.  The  bill  sets  up  conditions  respect- 
ing these  complainants  and  their  business  which  could  have  no  ap- 
plication to  any  other  party,  and  it  is  clear  that  the  controversy  is  be- 
tween the  two  complainants  and  the  defendant.  There  is  nothing  in 
the  bill  to  justify  the  assertion  that  they  represent  a  class,  and  the  bill 
shows  that  the  supposed  class  is  not  numerous. 

Under  the  rule  that  equity  will  sometimes  intervene  to  prevent  a 
multiplicity  of  suits,  it  was  held  in  City  of  Chicago  v.  Collins,  175 
111.  44.J,  51  N.  E.  907,  49  L.  R.  A.  408,  67  Am.  St.  Rep.  224,  that  373 
complainants,  suing  in  behalf  of  themselves  and  between  200,000 
and  300,000  others  similarly  situated,  could  maintain  a  bill  to  en- 
join the  enforcement  of  an  ordinance  requiring  an  annual  license 
fee.  That  was  a  case  where  a  license  was  required,  and  a  fee  ex- 
acted, from  the  complainants  and  all  others  who  made  use  of  means 
of  travel  in  the  city  of  Chicago.  They  were  all  similarly  situated. 
The  case  of  Wilkie  v.  City  of  Chicago,  188  111.  444,  58  N.  E.  1004, 
80  Am.  St.  Rep.  182,  was  a  similar  one.  In  that  case  78  complainants 
filed  a  bill  in  behalf  of  themselves  and  900  or  more  others  from 
whom  the  city  of  Chicago  exacted  a  license  fee  for  pursuing  their 
occupation.  Another  case  where  it  was  held  that  a  court  of  equity 
might  properly  interfere  was  Spiegler  v.  City  of  Chicago,  216  111. 
114,  74  N.  E.  718,  where  complainants,  on  behalf  of  themselves  and 
3,000  or  4,000  other  persons  engaged  in  the  same  business  as  them- 
selves, joined  in  a  bill  to  prevent  the  enforcement  of  an  ordinance  li- 
censing and  regulating  that  business.  In  all  of  those  cases  there 
was  actual  application  of  the  ordinance  to  numerous  persons,  all  of 
whom  were  in  like  situations.     In  the  case  of  German  Alliance  Ins. 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF, 


413 


Co.  V.  Van  Cleave,  191  111.  -110,  61  N.  E.  91,  42  corporations,  who 
were  complainants,  filed  a  bill  to  enjoin  the  defendant  from  paying 
over  to  the  State  Treasurer  moneys  collected  from  them  as  a  tax. 
It  would  have  required  at  least  12  suits  to  accomplish  the  purpose  of 
the  bill,  and  the  facts  and  law  in  each  case  would  have  been  exactly 
the  same.  It  was  held  that  the  case  was  a  proper  one  for  the  exer- 
cise of  equitable  powers.  In  the  case  of  North  American  Ins.  Co. 
V.  Yates,  211  111.  272,  73  N.  E.  423,  a  bill  was  filed  by  the  insurance 
superintendent  against  20  companies  and  33  individuals  to  enjoin 
them  from  transacting  the  business  of  fire  insurance  without  com- 
plying with  the  law.  It  was  held  that  in  such  a  case  equity  might 
interfere. 

Plainly,  there  is  no  similarity  between  those  cases  and  this  case  in 
which  two  complainants,  operating  in  different  parts  of  the  city  and 
furnishing  practically  all  the  street  railway  service  for  the  city  of 
Chicago,  claim  the  right  to  maintain  a  suit  in  equity  to  settle  the  ques- 
tion of  the  validity  of  this  ordinance  for  the  reason  that  there  are  oth- 
er persons  and  corporations  operating  lines  of  street  railway  in  out- 
lying districts,  where  perhaps  the  difficulty  is  not  so  much  to  prevent 
overcrowding  cars  as  to  fill  them  with  passengers.  So  far  as  ap- 
pears from  the  bill,  the  only  real  dispute  is  between  the  two  com- 
plainants and  the  defendant,  and  the  rights  and  interests  of  numerous 
parties  are  not  involved. 

The  decree  of  the  circuit  court  is  reversed,  and  the  bill  dismissed. 

Bill  dismissed.^" 


DOBBINS  v.  CITY  OF  LOS   ANGELES. 

(Supreme  Court  of  United  Stutes.  1901.     195  U.  S.  223,  25  Sup.  Ct.  18,  49 
L.  Ed.  169.) 

In  error  to  the  Supreme  Court  of  the  state  of  California  to  review 
a  judgment  which  affirmed  a  judgment  of  the  superior  court  in  and 
for  the  county  of .  Los  Angeles  in  that  state  dismissing  a  bill  to 
enjoin  the  enforcement  of  a  municipal  ordinance  prohibiting  the  erec- 
tion or  maintenance  of  gasworks  except  within  certain  prescribed 
limits.     Reversed  and  remanded  for  further  proceedings. 

See  same  case  below,  139  Cal.  179,  72  Pac.  970,  96  Am.  St.  Rep. 
95. 

Plaintiff  in  error  fded  a  bill  of  complaint  against  the  city  of  Los 
Angeles,  seeking  an  injunction  to  restrain  the  enforcement  of  cer- 
tain ordinances  prohibiting  the  erection  or  maintenance  of  gasworks 
except  within  prescribed  limits  in  said  city. 

10  See  McQuillin.  :Munieipal  Ordinances,  §  285. 

See  Delaney  v.  Flood.  183  N.  Y.  323,  76  N.  E.  209,  2  L.  R.  A.  (N.  S.)  GTS, 
111  Am.  St.  Rep.  759  (1906),  injunction  refu.sed  to  restrain  police  authorities 
from  stationing  officers  near  place  alleged  to  be  kept  for  illegal  purpose. 


414  RELIEF   AGAINST   ADMIXISTKATIVE    AC'JIOX.  (Part    2 

The  case  was  decided  upon  demurrer  to  the  bill.  The  complaint 
sets  forth,  in  substance:  That  on  August  26,  1901,  the  city  council 
of  Los  Angeles  adopted  an  ordinance  making  it  unlawful  to  erect 
and  maintain  gasworks  outside  of  a  certain  district  described  in 
the  ordinance,  and  fixing  penalties  for  the  violation  thereof.  While 
this  ordinance  was  in  force  the  plaintiff  in  error  made  a  contract 
with  the  Valley  Gas  &  Fuel  Comoany  for  the  erection  of  certain 
gasworks  upon  territory  to  be  thereafter  designated  by  her,  and  on 
September  28,  1901,  purchased  lands  within  the  limits  of  the  privi- 
leged district  as  fixed  by  the  ordinance.  That  on  the  22d  of  Novem- 
ber, 1901,  upon  application  to  the  board  of  fire  commissioners  of 
the  city  of  Los  Angeles,  that  body  granted  to  the  plaintifif  in  error 
the  privilege  to  erect  the  gasworks  upon  the  territory  aforesaid. 
Thereupon  the  plaintiff  in  error  directed  the  Valley  Gas  &  Fuel  Com- 
pany to  proceed  with  the  erection  of  the  works  upon  the  premises 
so  purchased.  That  the  foundations  were  constructed  at  a  cost  of 
■upwards  of  $2,500.  After  the  foundations  had  been  nearly  com- 
pleted the  city  council,  on  November  25,  1901,  passed  a  second  or- 
dinance, amending  the  first  ordinance,  and  thereby  so  limiting  the 
boundaries  of  the  territory  within  which  the  erection  of  gasworks 
was  permitted  in  said  city  as  to  include  the  premises  of  the  plaintiff 
in  error  within  the  prohibited  territory.  The  work  of  constructing 
the  works  was  continuously  prosecuted  until  the  latter  part  of  Feb- 
ruary, 1902,  when  the  plaintiff  in  error  alleges  that  the  city  of  Los 
Angeles,  combining  and  confederating  with  one  James  R.  C.  Burton 
and  other  persons  unknown,  caused  certain  employes  of  the  com- 
pany engaged  in  the  erection  of  said  works  to  be  arrested,  charged 
with  the  violation  of  the  said  city  ordinance.  Other  arrests  were 
made  on  the  1st  and  3d  of  March,  1902.  On  the  3d  of  March,  1902, 
the  city  council  passed  a  third  ordinance,  amending  the  ordinance  of 
November  25,  1901,  in  respect  to  the  description  of  the  district  with- 
in which  gasworks  could  be  erected.  On  March  6,  1902,  the  city 
caused  the  arrest  of  certain  persons  employed  by  the  company  in 
charge  of  the  erection  of  the  works,  charged  with  the  violation  of 
the  amended  city  ordinance. 

It  is  averred  that  the  adoption  by  the  city  council  of  the  ordinances 
aforesaid,  and  the  attempted  enforcement  thereof,  were  instigated 
by  officers  and  agents  of  the  Los  Angeles  Lighting  Company,  a  cor- 
poration engaged  in  manufacturing  and  supplying  gas  in  said  city, 
and  having  a  monopoly  of  said  business  therein.  It  is  further  averred 
that  the  action  of  the  municipal  authorities  complained  of  was  taken 
for  the  purpose  of  protecting  the  said  Los  Angeles  Lighting  Com- 
pany in  the  enjoyment  of  its  monopoly.  It  is  also  claimed  that  the 
territory  surrounding  the  premises  of  the  plaintiff  in  error,  and 
Vv'ithin  which,  under  the  ordinance  of  August  26,  in  force  when  the 
complainant  made  her  purchase  and  located  and  began  the  erec- 
tion of  the  gasworks,  it  was  lawful  so  to  do,  and  which,  by  the  amend- 


Ch.  S)  ,  ACTIONS   FOR   SPECIFIC   KELIEF.  415 

ing  ordinances,  was  added  to  the  prohibited  territory,  was  and  is  a 
district  devoted  ahnost  exclusively  to  manufacturing  enterprises. 
Within  its  boundaries  there  is  a  large  amount  of  vacant  and  unoc- 
cupied land  which  is  and  will  continue  to  be  useless  except  for  the 
erection  of  manufacturing  establishments ;  within  which  were  located 
at  that  time  a  soap  factory,  a  wool-pulling  factory,  three  wineries, 
numerous  oil  wells  in  operation,  iron  foundry,  brass  foundry,  oil 
refinery;  immediately  east  of  said  tract,  railroads  and  an  extensive 
tannery ;  immediately  north,  the  oil  tanks  and  refinery  of  the  Standard 
Oil  Company.  That  the  works  being  constructed  for  the  plaintiff 
in  error  are  to  be  built  upon  concrete  foundations  with  a  superstruc- 
ture of  noncombustible  material,  so  that  there  can  be  no  danger  from 
explosion,  bursting,  or  leaking.  The  machinery  is  to  be  of  the 
most  approved  pattern ;  and  that  there  can  be  no  leakage  or  escape 
of  odors  or  any  interference  with  the  health,  comfort,  or  safety  of 
the  inhabitants  of  the  city. 

The  plaintiff  in  error  relying  upon  the  protection  of  the  fourteenth 

amendment  to  the  Constitution  of  the  United  States,  prays  that  the 

permit  granted  by  the  board  of   fire   commissioners   be  declared  to 

be  a  valid  and  subsisting  contract  between  the  city  of  Los  Angeles 

and  herself,  and  that  all  ordinances  passed  by  the  city  council  in  con- 

I    travention  thereof  be  declared  void ;    that  the  defendant  be  enjoined 

I    from  enforcing  said  ordinances   against  the  plaintiff,   from  delaying 

or  interfering  with  the  action   of  the  plaintiff  in   erecting  the   said 

j    works,  from  interfering  with  the  maintenance  and  operation  of  the 

I    same,  and  for  general  relief. 

I  Day,  J.^^  As  this  case  was  decided  upon  demurrer  to  the  complaint, 
the  allegations  thereof  must  be  taken  as  true.  The  question  pre- 
sented involves  the  right  of  the  plaintiff  in  error  to  invoke  the  pro- 
tection of  the  fourteenth  amendment  against  alleged  infraction  of  her 
rights  by  the  action  of  the  city  council  in  passing  and  enforcing  the 
ordinances  which  prevent  the  carrying  on  of  the  business  of  making 
and  selling  gas  to  the  people  of  the  city.     *     *     * 

In  this  case  we  think  the  allegations  of  the  bill  disclose  such 
character  of  territory,  such  sudden  and  unexplained  change  of  its 
limits  after  the  plaintiff  in  error  had  purchased  the  property  and 
gone  forward  with  the  erection  of  the  works,  as  to  bring  it  within 
that  class  of  cases  wherein  the  court  may  restrain  the  arbitrary  and 
discriminatory  exercise  of  the  police  power  which  amounts  to  a 
taking  of  property  without  due  process  of  law  and  an  impairment 
of  property  rights  protected  by  the  fourteenth  amendment  to  the  fed- 
eral Constitution. 

It  is  also  urged  by  the  defendants  in  error  that  a  court  of  equity 
will  not  enjoin  prosecution  of  a  criminal  case;  but,  as  we  have  seen, 
the  plaintiff  in  error  in  this  case  had  acquired  property  rights  which, 

11  Only  a  iwrtion  of  the  opinion  is  printetl. 


416  RELIEF  AGAINST  ADMINISTRATIVE  ACTION,  (Part    2 

by  the  enforcement  of  the  ordinances  in  question,  would  be  destroyed 
and  rendered  worthless.     If  the  allegations  of  the  bill  be  taken  as 

true,  she  had  the  right  to  proceed  with  the  prosecution  of  the  work  | 

without   interference   by   the  city   authorities   in   the   form  of   arrest  1 

and  prosecution  of  those  in  her  employ.  ' 

It  is  well  settled  that,  where  property  rights  will  be  destroyed,  un-  j 

lawful  interference  by  criminal  proceedings  under  a  void  law  or  or-  ! 

dinance  may  be  reached  and  controlled  by  a  decree  of  a  court  of  ' 

equitv.     Davis  &  F.  Mfg.  Co.  v.  Los  Angeles,  189  U.  S.  207-218,  \ 

23  Sup.  Ct.  498,  47  L.  Ed.  778-780,  and  cases  therein  cited.  i 

Upon  the  whole  case,  we  are  of  opinion  that  the  demurrer  should  - 

have  been  overruled  and  the  city  of  Los  Angeles  put  upon  its  answer.  ; 

For  the  reasons  herein  stated,  the  judgment  of  the  Supreme  Court  j 

of  California  is  reversed,  and  the  cause  remanded  to  that  court  for  .' 
further  proceedings  not  in  conflict  with  this  opinion.^- 


12  "We  cannot  agree  with  counsel  for  the  appellee  that  a  court  of  equity  \ 
has  no  jurisdiction  to  restrain  the  appellee  [mayor  and  city  council  of  Balti- 
more] in  the  enforcement  of  the  ordinance  in  question,  even  though  it  may  be 
conceded  to  be  invalid,   and  that  its  execution  would  affect  injuriously  the  ; 
rights  of  the  appellant  and  others.     In  Page's  Case,  34  Md.  558   (1871),  and 
in  Holland's  Case,  11  Md.  189,  69  Am.  Dec.  195  (1857),  and  in  other  cases,  we  j 
have  said  that  'where  an  ordinance  is  void,  and  its  provisions  are  about  to  be 
enforced,  any  party  whose  interests  are  to  be  injuriously  affected  thereby  may, 
and  properly  ought  to,  go  into  a  court  of  equity  and  have  the  execution  of  the  '. 
ordinance  stayed  bv  injunction.'  "     Deems  v.  Baltimore,  80  Md.  104,  30  Atl. 
049,  20  L.  R.  A.  541,  45  Am.  St,  Rep.  339  (1894). 

An  injunction  will  not  be  granted  against  the  enactment  of  an  ordinance. 
McQuillin,  Municipal  Ordinances,  §  103;  Stevens  v.  St.  Mary's  Training 
School,  144  111.  330,  32  N.  E.  902,  18  L.  R.  A.  832,  30  Am.  St.  Rep.  438  (1893). 
See  State  ex  rel.  Rose  v.  Superior  Court  of  Milwaukee  County,  105  Wis.  651, 
677,  078,  81  N.  W.  1046,  48  L.  R.  A.  819  (1900). 

Injunctions  to  restrain  boards  of  health  and  other  sanitary  authorities  have 
been  granted:  (1)  Where  the  proposed  action  of  the  board  threatened  to 
create  a  nuisance.  Baltimore  v.  Fairfield  Improvement  Co.,  87  Md.  352,  39 
Atl.  1081,  40  L.  R.  A.  494.  07  Am.  St.  Rep.  344  (1891) ;  Upjohn  v.  Richland  Bd, 
of  Health,  40  Mich.  542,  9  N.  W.  845,  41  Am.  St.  Rep.  178  (1881) ;  Thompson 
V.  Kimbrough,  23  Tex.  Civ.  App.  350,  57  S.  W.  328  (1900).  (2)  Where  the 
sanitary  authority  proposed  to  act  beyond  its  jurisdiction.  Hoffman  v. 
Schultz,  31  How.  Proc.  (N.  Y.)  385  (1860).  (3)  Where  the  summary  abate- 
ment of  property  was  threatened.  Babcock  v.  Buffalo,  56  N.  Y.  208  (1874); 
Rogers  v.  Barker,  31  Barb.  (N.  Y.)  447  (1800)  ;  Clark  v.  Syracuse,  13  Barb. 
(N.  Y.)  32  (1852).  (4)  Where  jurisdictional  requirements  have  not  been  ob- 
served, especially  that  of  notice  and  hearing.  Eddy  v.  Bd.  of  Health,  10 
Phila.  (Pa.)  94  (1873)  ;  Weil  v.  Ricord,  20  N.  J.  Eq.  169  (1873).  (5)  Where 
they  act  fraudulently  or  oppressively.  Chase  v.  Middleton,  123  Mich.  047,  82 
N.  W.  012  (190O). 

On  the  other  hand,  it  has  been  said  that  there  is  no  power  to  inquire  into 
the  question  whether  there  is  a  nuisance,  and  to  enjoin  the  board  of  health  if 
it  should  turn  out  that  in  the  judgment  of  the  court  there  is  none.  Stone  v. 
Heath,  179  Mass.  385,  60  N.  E.  975  (1901). 


Ch.  8)  ACTIONS   FOR  SPECIFIC   RELIEF.  417 


SECTION  46.— SAME— TO  RESTRAIN  THE  ASSESSMENT 
I  AND  COLLECTION  OF  TAXES 


PITTSBURG,  ETC.,  RY.  v.  BOARD  OF  PUBLIC  WORKS  OF 
WEST  VIRGINIA. 

(Supreme  Court  of  United  States.  1898.     172  U.  S.  32,  19  Sup.  Ct.  90,  43 
L.  Ed.  354.) 

I       Mr.  Justice  Gray  delivered  the  opinion  of  the  cottrt.^' 

The   collection   of   taxes   assessed  under   the   authority  of   a   state 

j   is  not  to  be   restrained  by  writ  of  injunction   from  a  court  of  the 

I  United  States,  unless  it  clearly  appears,  not  only  that  the  tax  is  il- 

I  legal,  but  that  the  owner  of  the  property  taxed  has  no  adequate  rem- 

j  edy  by  the  ordinary  processes  of  the  law,  and  that  there  are  special 

circumstances  bringing  the  case  under  some  recognized  head  of  equity 

1  jurisdiction.     Dows  v.  Chicago,  11  Wall.  108,  20  L.  Ed.  65 ;   Hanne- 

I  winkle  v.  Georgetown,  15  Wall.  547,  21  L.  Ed.  331;    State  Railroad 

I  Tax  Cases,  92  U.  S.  575,  23  L.  Ed.  663 ;   Union  Pacific  Ry.  v.  Chey- 

j  enne.  113  U.  S.  516,  5  Sup.  Ct.  601,  28  L.  Ed.  1098 ;    Milwaukee  v. 

Koeffler,  116  U.  S.  319,  6  Sup.  Ct.  372,  29  L.  Ed.  612;    Shelton  v. 

Piatt,  139  U.  S.  591,  11  Sup.  Ct.  646,  35  L.  Ed.  273. 

In  Dows  V.  Chicago,  a  citizen  of  the  state  of  New  York,  owning 
shares  in  a  national  bank  organized  and  doing  business  in  the  city 
of  Chicago,  filed  a  bill  in  equity,  in  the  Circuit  Court  of  the  United 
j  States  for  the  Northern  District  of  Illinois,  to  restrain  the  collection 
\  of  a  tax  assessed  by  the  city  of  Chicago  upon  his  shares  in  the  bank, 
i  alleging,  among  other  things,  that  the  tax  was  illegal  and  void,  be- 
j  cause  the  tax  was  not  uniform  and  equal  with  taxes  on  other  property, 
as  required  by  the  Constitution  of  the  state,  and  because  the  shgires 
were  taxable  only  at  the  domicile  of  the  owner,  and  therefore  were 
not  property  within  the  jurisdiction  of  the   state   of   Illinois.     This 
court,  speaking  by  Mr.  Justice  Field,  without  considering  the  validity 
of  the  objections  to  the  tax,  held  that  the  bill  could  not  be  maintained, 
saying:    "Assuming  the  tax  to  be  illegal  and  void,  we  do  not  think 
any  ground  is  presented  by  the  bill  justifying  the  interposition  of  a 
court  of  equity  to  enjoin  its  collection.     The  illegality  of  the  tax  and 
the  threatened  sale  of  the  shares  for  its  payment  constitute  of  them- 
selves alone  no  ground  for  such  interposition.     There  must  be  some 
special  circumstances  attending  a  threatened  injury  of  this  kind,  dis- 
tinguishing it  from  a  common  trespass,  and  bringing  the  case  under 
some   recognized   head  of   equity  jurisdiction,  before   the   preventive 

13  Only  a  portion  of  the  opinion  is  printed. 
Fr.Adm.TvAw — 27 


I 

418  RELIEF   AGAIXST   ADMINISTRATIVE   ACTION.  (Part    2  I 

remedy  of  injunction  can  be  invoked.  It  is  upon  taxation  that  the 
several  states  chiefly  rely  to  obtain  the  means  to  carry  on  their  re- 
spective governments,  and  it  is  of  the  utmost  importance  to  all  of 
them  that  the  modes  adopted  to  enforce  the  taxes  levied  should  be 
interfered  with  as  little  as  possible.  Any  delay  in  the  proceedings  of 
the  officers,  upon  whom  the  duty  is  devolved  of  collecting  the  taxes, 
may  derange  the  operations  of  the  government,  and  thereby  cause 
serious  detriment  to  the  public.  No  court  of  equity  will,  therefore, 
allow  its  injunction  to  issue  to  restrain  their  action,  except  where  it 
may  be  necessary  to  protect  the  rights  of  the  citizen  whose  property 
is  taxed,  and  he  has  no  adequate  remedy  by  the  ordinary  processes; 
of  the  law."  11  Wall.  109,  110,  20  L.  Ed.  65.  "The  party  of  whomi 
an  illegal  tax  is  collected  has  ordinarily  ample  remedy,  either  by  ac-; 
tion  against  the  officer  making  the  collection  or  the  body  to  whom  tlie 
tax  is  paid.  Here  such  remedy  existed.  If  the  tax  was  illegal,  the 
plaintiff  protesting  against  its  enforcement  might  have  had  his  ac- 
tion, after  it  was  paid,  against  the  officer  or  the  city  to  recover  back 
the  money,  or  he  might  have  prosecuted  either  for  his  damages.  No, 
irreparable  injury  would  have  followed  to  him  from  its  collection. 
Nor  would  he  have  been  compelled  to  resort  to  a  multiplicity  of  suits 
to  determine  his  rights.  His  entire  claim  might  have  been  embraced 
in  a  single  action."     11  Wall.  112,  20  L.  Ed.  65.  , 

In  the  State  Railroad  Tax  Cases,  this  court,  in  a  careful  and  thor- 
ough opinion  delivered  by  Mr.  Justice  Miller,  stated  that  "it  has 
been  repeatedly  decided  that  neither  the  mere  illegality  of  the  ta^^ 
complained  of,  nor  its  injustice  nor  irregularity,  of  themselves,  giv^ 
the  right  to  an  injunction  in  a  court  of  equity,"  referred  to  section 
3224  of  the  Revised  Statutes  (U.  S.  Comp.  St.  1901,  p.  2088),  which 
provides  that  "no  suit  for  the  purpose  of  restraining  the  assessment 
or  collection  of  any  tax  shall  be  maintained  in  any  court,"  and  said 
that,  "though  this  was  intended  to  apply  alone  to  taxes  levied  by  the 
United  States,  it  shows  the  sense  of  Congress  of  the  evils  to  be 
feared  if  courts  of  justice  could,  in  any  case,  interfere  with  the  pro- 
cess of  collecting  the  taxes  on  which  the  government  depends  for 
its  continued  existence."  The  court  then  quoted  from  Dows  v.  Chi- 
cago and  Hannewinkle  v.  Georgetown,  above  cited,  and  proceeded 
as  follows :  "We  do  not  propose  to  lay  down  in  these  cases  any  ab- 
solute limitation  of  the  powers  of  a  court  of  equity  in  restraining  the 
collection  of  illegal  taxes.  But  we  may  say  that,  in  addition  to  il- 
legality, hardship  or  irregularity,  the  case  must  be  brought  within 
some  of  the  recognized  foundations  of  equitable  jurisdiction,  and 
that  mere  errors  or  excess  in  valuation,  or  hardship  or  injustice  of 
the  law,  or  any  grievance  which  can  be  remedied  by  a  suit  at  law, 
either  before  or  after  payment  of  taxes,  will  not  justify  a  court 
of  equity  to  interpose  by  injunction  to  stay  collection  of  a  tax. 
One  of  the  reasons  why  a  court  should  not  thus  interfere,  as  it 
would  in  any  transaction  between  individuals,  is  that  it  has  no  power 


Ch.  8)  ACTIONS  FOR  SPECIFIC   RELIEF.  419 

to  apportion  the  tax  or  to  make  a  new  assessment,  or  to  direct  another 
to  be  made  by  the  proper  officers  of  the  state.  These  functions  are 
wholly  beyond  the  power  of  the  court  when  so  acting.  The  levy  of 
taxes  is  not  a  judicial  function.  Its  exercise,  by  the  Constitutions 
of  all  the  states,  and  by  the  theory  of  our  English  origin,  is  exclusive- 
ly legislative.  A  court  of  equity  is,  therefore,  hampered  in  the  exer- 
cise of  its  jurisdiction  by  the  necessity  of  enjoining  the  tax  com- 
plained of,  in  whole  or  in  part,  without  any  power  of  doing  com- 
plete justice  by  making,  or  causing  to  be  made,  a  new  assessment  on 
any  principle  it  may  decide  to  be  the  right  one.^*  In  this  manner,  it 
may,  by  enjoining  the  levy,  enable  the  complainant  to  escape  wholly 
'  the  tax  for  the  period  of  time  complained  of,  though  it  be  obvious  that 
I  he  ought  to  pay  a  tax  if  imposed  in  the  proper  manner."  93  U.  S. 
I  613-615,  23  L.  Ed.  GG3. 

I  In  Union  Pacific  Railway  Co.  v.  Cheyenne,  in  which  the  Union 
j  Pacific  Railway  Company  obtained  an  injunction  against  the  levy  of 
:a  tax  by  the  city  of  Cheyenne,  the  facts  were  peculiar.  The  plain- 
Itiff,  owning  many  lots  of  land  in  that  city,  had  paid  a  tax  assessed 
jon  all  its  property  by  a  board  of  equalization  under  a  general  statute 
lof  the  territory  of  Wyoming,  and  had  also  been  taxed  by  the  city 
iof  Cheyenne  under  provisions  of  its  charter  which  had  been  repealed 
jby  that  statute;  and  the  bill  showed,  as  stated  in  the  opinion,  that 
ithe  levy  complained  of  "would  involve  the  plaintiff  in  a  multiplicity 
lof  suits  as  to  the  title  of  lots  laid  out  and  being  sold,  would  prevent 
jtheir  sale,  and  would  cloud  the  title  to  all  its  real  estate."  113  U. 
|S.  526,  527,  5  Sup.  Ct.  601,  606,  28  L.  Ed.  1098.  *  *  *  is 
( 

I  14  Compai'e  remarks  of  Cooley,  J.,  on  advantages  of  injunction  in  tax  pro- 
|ceedings,  in  Wliitbeck  v.  Hudson,  .50  Micli.  86,  88,  14  N.  W.  70S  (1883). 
i  15  In  the  case  last  cited  (Union  Pacific  Railway  Oo.  v.  Cheyenne,  113  U. 
[S.  516,  5  Sup.  Ct.  601.  28  L.  Ed.  1098  [18851 )  the  court  says :  "It  cannot  be 
jlenied  that  bills  in  equity  to  restrain  the  collection  of  taxes  illegally  imposed 
aave  frequently  been  sustained.  But  it  is  well  settled  that  there  ought  to  be 
l^ome  equitable  ground  for  relief  besides  the  mere  illegality  of  the  tax ;  for 
It  must  be  presumed  that  the  law  furnishes  a'  remedy  for  illegal  taxation.  It 
j)ften  happens,  however,  that  the  case  is  such  that  the  person  illegally  taxed 
vould  suffer  irremediable  damage,  or  be  subject  to  vexatious  litigation,  if  he 
vere  compelled  to  resort  to  his  legal  remedy  alone.  For  example,  if  the  legal 
Semedy  consisted  only  of  an  action  to  recover  back  the  money  after  it  had 
i)een  collected  by  distress  and  sale  of  the  taxpayer's  lands,  the  loss  of  his 
freehold  by  means  of  a  tax  sale  would  be  a  mischief  hard  to  be  remedied. 
JDven  the  cloud  cast  upon  his  title  by  a  tax  under  which  such  a  sale  could  be 
Qade  would  be  a  grievance  which  would  entitle  him  to  go  into  a  court  of 
iQuity  for  relief.  Judge  Cooley  fairly  sums  up  the  law  on  this  subject  as  fol- 
lows: 'To  entitle  a  party  to  relief  in  equity  against  an  illegal  tax.  he  must  by 
ids  bill  bring  his  case  under  some  acknowledged  head  of  equity  jurisdiction. 
iThe  illegality  of  the  tax  alone,  or  the  threat  to  sell  i)roperty  for  its  satisfac- 
jion,  cannot,  of  themselves,  furnish  any  ground  for  equitable  interposition, 
■n  ordinary  cases  a  party  must  find  his  remedy  in  the  courts  of  law,  and  it 
I?  not  to  be  supposed  he  will  fail  to  find  one  adequate  to  his  proper  relief, 
'ases  of  fraud,  accident,  or  mistake,  cases  of  cloud  upon  the  title  to  one's 
[roperty,  and  cases  where  one  is  threatened  with  irremediable  mischief  may 
jemand  other  remedies  than  those  the  common  law  can  give,  and  these  in 
roper  case,  may  be  afforded  in  courts  of  equity.'    This  statement  is  in  gener- 


420  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part   3 


SECTION  47.— MANDAMUS 


BLACKSTONE'S  COMMENTARIES,  BOOK  III,  p.   110. 

A  Writ  of  Mandamus  is,  in  general,  a  command  issuing  in  the 
king's  name  from  the  Court  of  King's  Bench,^"  and  directed  to  any 
person,  corporation,  or  inferior  court  of  judicature  within  the  king's 
dominions,  requiring  them  to  do  some  particular  thing  therein  specified, 
which  appertains  to  their  office  and  duty,  and  which  the  Court  of 
King's  Bench  has  previously  determined,  or  at  least  supposes,  to  be 
consonant  to  right  and  justice. 

It  is  a  high  prerogative  writ,  of  a  most  extensively  remedial  nature 
and  may  be  issued  in  some  cases  where  the  injured  party  has  also  an- 
other more  tedious  method  of  redress,  as  in  the  case  of  admission  or 
restitution  to  an  office;^''  but  it  issues  in  all  cases  where  the  party  hath 
a  right  to  have  any  thing  done,  and  hath  no  other  specific  means  of 
compelling  its  performance.     A  mandamus  therefore  lies  to   compel 


al  accordance  with  the  decisions  of  this  court,  as  well  as  of  many  state  courts. 
Dows  V.  Chicago,  11  Wall.  108,  109.  20  L.  Ed.  65  (1870)  ;  Hannewiukle  v. 
Georgetown,  15  Wall.  547,  549.  21  L.  Ed.  231  (1872)  ;  State  Railroad  Tax! 
Oases.  92  U.  S.  .575,  612,  61.3,  23  L.  Ed.  663  (1875),  and  cases  there  cited.  In! 
Cummlugs  v.  National  Bank,  101  U.  S.  1.53,  156,  25  L  Ed.  903  (1879),  where 
the  bank  filed  a  bill  to  prevent  the  collection  of  a  tax  wrongfully  assessed  by 
the  state  against  the  shares  of  its  stockholders,  and  which  the  bank  was  re- 
quired to  pay,  we  held  that  the  fiduciary  character  in  which  the  bank  stood 
to  its  stockholders  entitled  it  to  come  into  a  court  of  equity  for  relief.  In 
the  same  case  the  fact  that  a  like  remedy  by  injunction  was  given  to  parties' 
in  the  state  court  was  regarded  as  entitled  to  much  weight,  and  it  was  fur- 
ther held  that  where  a  rule  or  system  of  valuation  was  adopted  by  the  state' 
board  of  assessment,  calculated  to  operate  unequally,  and  to  violate  the  Con-' 
stitution  of  the  state,  and  applic.-ible  to  a  large  class  of  individuals,  or  cor-: 
porations.  equity  might  properly  interfere  to  restrain  the  operation  of  such 
unconstitutional  exercise  of  power.  And  in  Litchfield  v.  Webster  County,  101 
U.  S.  773.  779,  25  L.  Ed.  925  (1879),  we  held  that  a  court  of  equity  might  re- 
lieve against  an  excessive  rate  of  interest  on  taxes  in  arrear,  which  was  really 
in  the  nature  of  a  penalty,  and  which  the  state  could  not  fairly  and  equitably, 
demand,  having  itself  claimed  title  to  the  property  taxed.  These  authorities 
are  sufficient  to  illustrate  the  rules  by  which  courts  of  equity  should  be  gov-, 
erned  in  assuming  jurisdiction  of  suits  brought  to  arrest  the  collection  of  11-! 
legal  taxes.  We  think  that  the  allegations  of  the  bill  in  this  case  bring  it, 
fairly  within  the  jurisdiction  of  the  court.  It  shows  that  it  would  involve  the 
plaintiff  in  a  multiplicity  of  suits  as  to  the  title  of  lots  laid  out  and  being 
sold,  would  prevent  their  sale,  and  would  cloud  the  title  to  all  its  real  estate. 
We  think  that  these  results  are  sufficiently  apparent,  and  render  it  unneces- 
sary to  look  farther."  113  U.  S.  52-5-527,  5  Sup.  Ct.  605-006,  (28  L.  Ed.  1098 
(1885). 

"If  there  was  no  right  to  assess  the  particular  thing  at  all,     *     *     *    an 
assessment  under  such  circumstances  would  be  void,  and,  of  course,  no  pay- 
is  As  to  the  courts  which  issue  Mandamus,  see  School  Inspectors  of  Peoria 
V.  Peoi)le,  20  111.  525  (1858),  and  note  58  L.  R.  A.  333. 

17  See  King  v.  Wheeler,  Lee  temp.  Ilardwicke,  99  (1735). 


Ch.  8)  ACTIONS   FOR   SPECIFIC    RELIEF.  421 

the  admission  or  restoration  of  the  party  applying  to  any  office  or  fran- 
chise of  a  public  nature,  whether  spiritual  or  temporal ;  to  academical 
degrees ;  to  the  use  of  a  meeting-house,  etc.  It  lies  for  the  produc- 
tion, inspection,  or  delivery  of  public  books  and  papers ;  for  the  sur- 
render of  the  regalia  of  a  corporation;  to  oblige  bodies  corporate  to 
affix  their  common  seal ;  to  compel  the  holding  of  a  court ;  and  for  an 
indefinite  number  of  other  purposes,  which  it  is  impossible  to  recite 
minutelv. 


I  CODE  OF  PRACTICE  OF  GEORGIA  OF  1895. 

I 

Sec.  4867.  All  official  duties  should  be  faithfully  fulfilled,  and  when- 

i  ever  from  any  cause,  a  defect  of  legal  justice  would  ensue  from  a  fail- 

I  ure  or  improper  fulfillment,  the  writ  of  mandamus  may  issue  to  com- 

!  pel  a  due  performance,  if  there  be  no  other  specific  legal  remedy  for 

the  legal  rights. 

Sec.  4868.  Mandamus  does  not  lie  as  a  private  remedy  between  in- 
dividuals to  enforce  private  rights,  nor  to  a  public  officer  who  has  an 


ment  or  tender  of  anv  amount  would  be  necessary  before  seeking  an  injuuc- 
:  tion."  People's  National  Bank  v.  Marye,  191  U.  S.  272,  281,  24  Sup.  Ct.  68, 
,  71,  48  L.  Ed.  180  (1903). 

-  "The  assessment  being  bad,  for  the  reasons  which  we  have  stated,  the  board 
I  of  tax  conmiissioners  acted  without  .iurisdiction.  according  to  the  decision  of 
:  the  Supreme  Court  of  Indiana.  Hart  v.  Smith,  159  Ind.  182  [Gi  X.  E.  661,  58 
L.  R.  A.  &49,  9.5  Am.  St.  Rep.  280  (1!X)2)].  We  do  not  abate  at  all  from  the 
I  strictness  of  the  rule  that  in  general  an  injunction  will  not  be  granted  against 
]  the  collection  of  taxes.  State  Railroad  Tax  Cases,  92  U.  S.  575,  23  L.  Ed. 
I  663  (1875).  But  it  was  recognized  in  the  passage  just  quoted  from  People's 
National  Bank  v.  Marye  that  under  the  present  circumstances  a  resort  to 
i  equity  may  be  proper.  The  course  adopted  is  the  same  that  was  taken  with- 
[  out  criticism  from  the  court  in  Adams  Express  Co.  v.  Ohio  State  Auditor,  165 
!  U.  S.  194,  17  Sup.  Ct.  305,  41  L.  Ed.  683  (1897).  It  avoids  the  necessity  of 
'  suits  against  the  ofReers  of  each  of  the  counties  of  the  state,  and  we  are  of 
!  opinion  that  the  bill  may  be  maintained.  Union  Pacific  Ry.  v.  Chevenne,  113 
I  U.  S.  516.  5  Sup.  Ct.  601.  28  L.  Ed.  1098  (1885);  Pittsburg,  Cincinnati,  Chi- 
(  cago  &  St.  Louis  Ry.  v.  Board  of  Public  Works,  172  U.  S.  32,  19  Sup.  Ct.  90, 
I  43  L.  Ed.  354  (1898)."  Fargo  v.  Hart,  193  U.  S.  490,  503,  24  Sup.  Ct.  49S, 
I  501,  48  L.  Ed.  761   (1904). 

i  In  a  number  of  states  there  are  statutes  prohibiting  the  granting  of  injunc- 
i  tions  to  restrain  the  assessment  or  collection  of  taxes.  See  Eddy  v.  Tp.  of 
;  Lee,  73  Mich.  123,  40  N.  W.  792  (1888)  ;  Laird-Norton  Co.  v.  Pine  County,  72 
I  Minn.  409,  75  N.  W.  723  (1898).  But  these  statutes  do  not  control  the  equi- 
table jurisdiction  of  the  federal  courts.  Taylor  v.  Louisville  &  N.  R.  Co.,  88 
Fed.  350,  31  C.  C.  A.  537  (1898). 


}  The  following  additional  cases  in  this  collection  are  suits  to  restrain  public 
:  officers  or  bodies:  Lingo  v.  Burford,  112  Mo.  149,  20  S.  W.  459  (1892);  Pitts- 
burg, C,  C.  &  St.  L.  R.  Co.  V.  Backus,  154  U.  S.  421,  14  Sup.  Ct.  1114,  38  L. 
Ed.  1031  (1894);  State  Railroad  Tax  Cases.  92  U.  S.  57.5,  23  L.  Ed.  663 
(1875)  ;  Huling  v.  Ehrich,  183  111.  315,  155  N.  E.  636  (1899);  Metropolitan 
j  Bd.  of  Health  v.  Heister,  37  N.  Y.  661  (1868)  ;  North  American  Cold  Storage 
Co.  v.  Chicago,  211  U.  S.  306,  29  Sup.  Ct.  101,  53  L.  Ed.  195  (1908) ;  Eckhardt 
v.  Buffalo,  19  App.  Div.  1,  46  N.  Y.  Supp.  204  (1897) ;    Lowell  v.  Archambault 


422  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    3 

absolute  discretion  to  act  or  not,  unless  there  is  a  gross  abuse  of  such  ' 
<liscretion ;  but  it  is  not  confined  to  the  enforcement  of  mere  minis-  l| 
terial  duties. 


SECTION     48.— SAME— NATURE    AND     FORM     OF     PRO- 
CEEDING 


STATE  ex  rel.  ATCHISON,  T.  &  S.  F.  R.  CO.  v.  BOARD  OF 
COM'RS  OF  JEFFERSON  COUNTY. 

(Supreme  Court  of  Kansas,  1873.     11  Kan.  GG.) 

Valentine,  J.  This  is  an  original  proceeding  in  mandamus, 
brought  in  the  name  of  the  state  of  Kansas,  on  the  relation  of  the 
Atchison,  Topeka  &  Santa  Fe  Railroad  Company,  against  the  board  of 
county  commisioners  of  Jefferson  county,  to  compel  said  county  com- 
missioners to  issue  certain  bonds  of  said  county  to  said  railroad  com- 


189  Mass.  70,  75  N.  E.  65  (1905) ;  Chicago  v.  Burtice,  24  111.  489  (ISGO) ;  Weber 
V.  Baird,  208  111.  209,  70  N.  E.  2;?1  (1904) ;  Taylor  v.  Louisville  &  N.  R.  Co.,  88 
Fed.  3.50,  31  C.  C.  A.  537  (1898) ;  Magnetic  School  of  Healing  v.  McAnnulty, 
187  U.  S.  94,  23  Sup.  Ct.  33,  47  L.  Ed.  90  (1902) ;  Noble  v.  Union  River  Log- 
ging R.  Co.,  147  U.  S.  165,  13  Sup.  Ct.  271,  37  L  Ed.  123  (1893) ;  Bates  &  Guild 
Co.  V.  Payne,  194  U.  S.  106,  24  Sup.  Ct.  595,  48  L.  Ed.  894  (1904) ;  Reynolds  v. 
Schultz,  27  N.  Y.  Sup.  Ct.  282  (1867). 

Taxpayers'  actions  to  restrain  the  illegal,  corrupt,  or  wasteful  expenditure 
of  public  funds :  Doolittle  v.  Supervisors  of  Brodme  County,  18  N.  Y.  155 
(1858),  jurisdiction  denied.  Statute  allowing  such  action:  Laws  N.  Y.  1872, 
c.  161,  now  Code  Civ.  Proc.  §  1925.  See  Talcott  v.  Buffalo,  125  N.  Y.  280,  26 
N.  E.  263  (1891) ;  General  Municipal  Law  N.  Y.  1892,  e.  685,  §  3 ;  Rev.  Laws 
Mass.  c.  25.  §  100. 

Jurisdiction  asserted:  Col  ton  v.  Hanchett,,  13  111.  615  (1852);  New  London 
V.  Brainard,  22  Conn.  552  (1853) ;  Crajupton  v.  Zabriskie,  101  U.  S.  601,  25 
L.  Ed.  1070  (1879). 

Actions  in  equity  by  public  authorities  to  restrain  violation  of  law  by  pri- 
vate persons  or  corporations :  Attorney  General  v.  Gt.  Northern  R.  Co.,  1 
Drew.  &  S.  1.54  (1860);  Attorney  General  v.  Railroad  Companies,  35  Wis. 
425  (1874)  ;  In  re  Debs,  158  U.  S.  564,  15  Sup.  Ct.  900,  39  L.  Ed.  1092  (1895)  ; 
Columbian  Athletic  Club  v.  State,  143  Ind.  98,  40  N.  E.  914,  28  L.  R.  A.  727, 
52  Am.  St.  Rep.  407  (1895)  ;  Com.  ex  rel.  Pratt  v.  McGovern,  116  Ky.  212, 
75  S.  W.  261,  66  L.  R.  A.  280  (1903)  ;  State  v.  Uhrig,  14  Mo.  App.  413  (1883) ; 
State  v.  O'Leary,  1.55  Ind.  526,  58  N.  E.  703  (1900);  Taunton  v.  Taylor,  116 
Mass.  254,  pt.  5  (1874);  Village  of  Waupun  v.  Moore,  34  Wis.  450,'  17  Am. 
Rep,  446  (1874);  Mayor  of  Davenport  Corporation  v.  Tozer,  [19021  2  Ch.  182; 
Attorney  General  v.  Ashborne  Recreation  Grounds  Co.,  [1903]  1  Ch.  101;  In- 
habitants of  Needham  v.  N.  Y.  &  N.  E.  R.  Co.,  152  Mass.  61,  25  N.  E.  20 
(1890)  ;    Metropolitan  City  Ry.  Co.  v.  Chicago,  96  111.  620  (1880). 

General  City  Law  of  New  York,  §  223:  "*  *  *  The  city  may  maintain 
an  action  in  a  court  of  competent  jurisdiction  to  restrain  by  injunction  the 
violation  of  any  ordinance  of  the  common  council  or  of  the  commissioner  in 
charge  of  the  health  department,  notwithstanding  that  an  ordinance  may  pro- 
vide a  penalty  for  its  violation." 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  423 

pany.  The  defendants  move  to  dismiss  the  action,  because  the  afifida- 
vits,  motion,  and  alternative  writ  show  that  the  state  of  Kansas  has 
no  interest  in  the  result  of  the  action,  and  because  it  does  not  appear 
from  any  of  the  proceedings  that  the  railroad  company  have  any  right 
to  prosecute  the  action  in  the  name  of  the  state.  It  is  admitted  on  the 
part  of  the  railroad  company  that  the  state  has  no  interest  in  the  result 
of  the  action,  and  that  the  railroad  company  have  no  right  to  prosecute 
the  action  in  the  name  of  the  state,  or  to  use  the  name  of  the  state  as 
plaintiff,  unless  they  have  such  right  by  virtue  of  this  being  a  proceed- 
ing in  mandamus,  and  by  virtue  of  the  railroad  company  being  the 
relator  therein. 

We  think  the  motion  to  dismiss  the  action  should  be  sustained.  The 
action  of  mandamus,  as  well  as  every  other  civil  action,  should  under 
the  statutes  of  Kansas,  where  no  special  provision  is  otherwise  made, 
be  brought  and  prosecuted  in  the  name  of  the  real  party  in  interest. 
State  ex  rel.  Wells  v.  Marston,  6  Kan.  524,  533.  It  will  be  conceded 
that  this  was  not  the  rule  with  regard  to  mandamus  at  common  law. 
At  common  law  the  proceeding  by  mandamus  was  in  no  sense  an  action 
by  the  relator.  Neither  the  writ  nor  the  return  was  in  any  case  nor 
in  any  sense  a  pleading.  No  issues  of  fact  were  raised  by  the  writ  and 
the  return.  No  trial  could  be  had  in  the  case,  and  no  final  judgment 
could  be  rendered  therein  between  the  parties — the  relator  and  the 
respondent.  The  writ,  whether  alternative  or  peremptory,  was  merely 
a  writ,  and  nothing  more.  It  was  purely  a  prerogative  writ,  solely 
within  the  discretion  of  the  court  (never  a  writ  of  right),  and  was 
issued  in  the  king's  name,  or  in  the  name  of  the  sovereign  authority, 
commanding  some  particular  act  to  be  done.  The  return  was  merely 
an  answer  made  by  the  respondent  to  the  writ,  stating  that  he  had 
performed  the  act,  or  giving  some  excuse  or  justification  why  he  had 
not  performed  it.  It  was  never  a  pleading,  and  could  never  be  tra- 
versed or  controverted  by  the  relator,  or  by  any  one  else,  but  was  al- 
ways taken  as  absolutely  true,  however  false  it  might  be  in  its  state- 
ments of  fact.^^  The  only  remedy  that  the  relator  had  when  he  wished 
to  controvert  the  truth  of  the  return  was  to  institute  a  separate  and 
independent  action  on  the  case  for  a  false  return.  In  such  an  action 
the  relator  became  the  plaintiff,  the  respondent  became  the  defendant, 
the  proper  pleadings  were  filed  by  the  parties,  the  proper  issues  were 
made  up,  the  proper  trial  was  had,  and  the  proper  judgment  was  ren- 
dered in  the  action  between  the  parties.  If  the  judgment  was  for  the 
plaintiff,  he  recovered  his  damages  and  costs  (Tidd's  Practice,  949), 
and  the  court  then  issued  a  peremptory  writ  of  mandamus  against  the 
defendant.  If  the  judgment  was  for  the  defendant,  he  recovered  his 
costs. 

IS  See  Bang's  Case,  11  Coke,  93b.  99  (161.j):  "If  *  *  *  they  certify  a 
sufficient  cause  to  remove  him,  but  it  Is  false,  then  the  court  cannot  award  a 
writ  to  restore  him,  neither  can  any  issue  be  taken  thereupon,  because  the 
parties  are  strangers,  and  have  no  day  in  court." 


424  RELIKF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

The  law  of  mandamus  as  hereinbefore  stated,  and  the  subsequent 
action  on  the  case  for  a  supposed  false  return,  was  the  law  in  Eng- 
land down  to  the  passage  of  the  statute  of  9  Anne,  c.  20,^°  which  stat- 
ute, together  with  the  subsequent  statutes  passed  in  England  regulat- 
ing the  proceeding  by  mandamus,  form  no  part  of  the  common  law  in 
this  country.  K.  P.  Rly.  Co.  v.  Nichols,  Kennedy  &  Co.,  9  Kan.  253, 
12  Am.  Rep.  494;  Comp.  Laws  1862,  p.  678;  Gen.  St.  1868,  p.  1127, 
])ar.  3.  For  the  common  law  of  mandamus,  see  Bacon's  Abr.  "Man- 
damus" ;  Comyn's  Dig.  "Mandamus" ;  Jacob's  Law  Die.  "Manda- 
mus"; Stephen's  Nisi  Prius,  "Mandamus."  But  this  old  common-law 
mode  or  procedure  for  mandamus  has  been  materially  changed  by  stat- 
ute, not  only  in  Kansas,  but  in  nearly  every  other  state,  and  in  Eng- 
land. 

The  present  action  of  mandamus  is  not  only  the  old  common-law 
proceeding  of  mandamus,  but  it  is  also  the  old  common-law  action  on 
the  case  for  the  false  return.  It  is  the  two  proceedings  combined. 
The  alternative  writ  is  now  not  merely  a  writ,  as  formerly,  but  it  is 
also  a  pleading.  The  return  is  not  now  merely  a  response  to  the  writ, 
as  formerly  (wdiich  return  could  not  formerly  be  traversed  or  denied), 
but  it  is  also  a  pleading ;  and  the  facts  therein  stated  may  now  be 
controverted  the  same  as  they  may  on  any  other  pleading.  Issues  are 
now  made  up  by  the  writ  and  the  return.  A  trial  may  be  had  on  such 
issues,  and  judgment  rendered  for  the  plaintiff,  or  for  the  defendant, 
the  same  as  in  any  other  civil  action ;  and  the  action  is  now  considered 
almost  as  much  an  action  of  right  as  any  other  civil  action.  But  little 
now  rests  in  the  discretion  of  the  court.  Napier  v.  Poe,  12  Geo.  170, 
178;  Harrington  v.  Berkshire  Co.,  22  Pick.  (Mass.)  263,  268,  33  Am. 
Dec.  741.  In  fact,  the  proceeding  by  mandamus  is  now  under  exist- 
ing statutes  nearly  everywhere  in  England  and  America  considered  a^ 
a  civil  action  by  and  between  the  real  parties  thereto — the  relator  and 
the  respondent  (Kendall  v.  Stokes,  3  How.  100,  11  L.  Ed.  506 ;  Ar- 
berry  v.  Beaver,  6  Tex.  457,  464,  55  Am.  Dec.  791 ;  State  ex  rel.  Wells 
V.  Marston,  6  Kan.  524,  532),  who  are  denominated  the  plaintiff  and 
the  defendant.     See  the  reports  of  nearly  all  the  states. 

In  the  most  of  the  states  the  action  is  now  entitled  by  making  the 
relator  the  plaintiff,  and  the  respondent  the  defendant,  and  the  action 
is  prosecuted  in  the  name  of  the  relator  as  plaintiff,  and  not  in  the 
name  of  the  state,  as  formerly,  if  the  reports  of  adjudicated  cases  are 
correct.  The  states  of  Illinois,  Michigan,  New  York,  South  Carolina, 
Wisconsin,  and  possibly  a  few  other  states,  constitute  an  exception  to 
the  general   practice  of  the  present  day.      Our   statutes   everywhere 

1 » This  statute  applied  only  to  mandamus  proceedings  for  determining  the 
rights  of  offices  and  franchises  in  corporations  and  boroughs,  at  that  time 
the  most  common  application  of  mandamus.  It  was  extended  to  all  other 
cases  by  St.  1  Wm.  IV,  c.  21. 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  425 

seem  to  recognize  the  present  proceeding  by  mandamus  as  a  civil  ac- 
tion, with  the  relator  as  the  plaintiff,  and  the  respondent  as  the  de- 
fendant.    *     *     *2<' 


STATE  ex  rel.  COTHREN  v.  LEAN. 
(Supreme  Court  of  Wisconsin,    1859.     9   Wis.   279.) 

Paine,  J.^^  This  was  an  application  for  a  writ  of  mandamus,  to 
compel  Joseph  Lean,  the  register  of  deeds  of  Iowa  county,  to  keep 
his  office  at  Mineral  Point.  An  alternative  writ  was  issued  at  the 
last  term,  and  on  the  return  day  counsel  appeared  on  behalf  of  Lean, 
and  moved  to  quash  the  writ,  for  alleged  defects  in  the  petition  on 
which  it  was  granted.  This  motion  was  argued  in  the  absence  of 
the  relator,  but  was  not  disposed  of,  and  owing  to  the  changes  of 
the  judges  composing  this  court  a  reargument  was  ordered. 

At  the  present  term  the  relator  has  filed  a  motion  to  strike  from 
the  files  the  motion  to  quash,  and  also  another  motion  for  a  per- 
emptory writ.  These  three  motions  were  argued  together,  and  will 
now  be  disposed  of. 

In  support  of  the  motion  to  strike  off,  it  was  urged  that,  after  an 
alternative  writ  of  mandamus  is  once  issued,  the  person  to  whom  it  is 
directed  can  only  make  return  according  to  its  mandate,  and  cannot 
be  permitted  to  move  to  quash  the  writ,  even  for  alleged  defects  in 

20  The  rest  of  the  opinion  is  omitted. 

Accord:     People  ex  rel.  Livinarston  v.  Pacheco,  29  Cal.  210  (1865). 

See  State  ex  rel.  Green  Bay  &  M.  R,  R.  Co.  v.  .Tennings,  56  Wis.  IIP,,  119.  U 
N.  W.  28  (1882)  :  "It  is  true  that  at  common  law  the  words  'civil  action' 
would  not  include  writs  of  mandamus.  Commonwealth  v.  Commissioners  of 
Lancaster,  6  Bin.  (Pa.),  9;  also  Chinn  v.  Trustees.  32  Ohio  St.  236.  237.  Mr. 
Bouvier  says :  'The  vital  idea  of  an  action  is  a  proceeding  on  the  part  of  one 
person,  as  actor,  against  another,  for  the  infringement  of  some  right  of  the 
first,  before  a  court  of  justice,  in  the  manner  prescribed  by  the  court  or  the 
law.'  On  the  other  hand,  a  mandamus,  at  the  common  law  of  England,  was 
denominated  a  prerogative  writ,  and  was  originally  issued  out  of  the  Court 
of  Chancery,  but  subsequently  out  of  the  Court  of  King's  Bench,  because  the 
king  originally  sat  in  those  courts  in  person,  and  aided  in  the  administration 
of  justice.  Hence,  in  theory  at  least,  it  was  not  so  much  the  individual  seek- 
ing redress  as  the  king  who  was  the  actor.  In  this  country  it  cannot  be  a 
prerogative  writ ;  but,  nevertheless,  pai-takes  of  the  nature  of  such  a  writ, 
and  under  the  Constitution  and  laws  is  issued  by  the  courts.  Attorney  Gen- 
eral V.  Railroad  Companies,  35  Wis.  512  et  seq.  '  Beyond  question  it  is,  how- 
ever, in  a  proper  case,  in  substance  a  civil  remedy  for  the  citizen  who  has 
been  deprived  of  a  clear  legal  right,  notwithstanding  it  is  commenced  and 
prosecuted  in  the  name  of  the  state.  The  state  is  only  a  nominal  party. 
Brower  v.  O'Brien.  2  Ind.  431 ;  State  v.  Commissioners,  5  Ohio  St.  502.  Tlie 
word  'suit'  is  frequently  used  in  practice  as  synonymous  with  the  words  'civil 
action,'  but,  nevertheless,  it  seems  to  be  more  comprehensive,  and  includes 
proceedings  in  chancery  as  well  as  law.  *  *  *  So  it  has  been  held  to  in- 
clude proceedings  by  mandamus.  McBane  v.  People.  50  111.  506,  507;  Felts  v. 
Mayor,  2  Head   (Tenn.)   650.     *     *     *" 

See  BrowD  v.  Crego,  29  Iowa,  321   (1870). 

21  Only  a  portion  of  the  opinion  of  Paine,  J.,  is  printed. 


426  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part   2 

substance  in  the  petition  on  which  it  was  issued.  But  we  are  satis- 
fied that  as  a  matter  of  practice,  in  such  cases,  a  motion  to  quash 
is  entirely  proper.  Ahernative  writs  are  usually  granted  without 
much  examination.  The  papers  are  read,  and,  if  it  appears  clearly 
that  the  petitioner  is  not  entitled  to  the  relief  sought,  the  writ  is  re- 
fused. Otherwise  it  has  been  usual  to  allow  it  to  issue,  leaving  the 
merits  of  the  application  to  be  determined  when  presented  by  those 
familiar  with  them,  and  when  both  sides  should  be  represented. 
And  this  course  is  almost  a  necessity. 

Applications  for  the  writ  are  ex  parte.  The  questions  involved 
are  frequently  complicated,  and  the  solutions  difficult.  And  it  would 
be  impossible  for  the  court  to  give  them  such  examination  that  the 
issuing  of  the  writ  should  be  held  at  all  conclusive  on  the  sufficiency 
of  the  application.  And  a  motion  to  quash  is  a  proper  mode  of  test- 
ing that  sufficiency.  It  performs  the  functions  of  a  demurrer  to  a 
declaration,  and  we  think,  if  a  writ  should  be  issued  on  an  applica- 
tion defective  in  substance,  the  person  to  whom  it  was  directed  should 
have  some  method  of  raising  that  question  before  being  compelled  to 
answer.  And  the  authorities  cited  by  the  counsel  for  the  respondent 
show  that  a  motion  to  quash  has  been  resorted  to  for  that  purpose, 
both  in  this  country  and  in  England.  We  think  the  practice  proper, 
and  the  motion  to  strike  ofif  must  therefore  be  denied.'-     *     *     * 

The  motion  to  quash  the  alternative  writ  is  therefore  denied.  But 
as  we  have  held  the  filing  of  such  a  motion  to  be  proper  practice,  to 
test  the  sufficiency  of  the  application,  we  think,  when  the  motion 
is  overruled,  the  respondent  should  have  further  time  to  answer  if 
he  desires  it.  If  further  time  is  desired,  the  respondent  may  answer 
within  twenty  days,  and  the  peremptory  writ  is  denied.  If  no  fur- 
ther time  to  answer  is  desired  the  peremptory  writ  may  issue. 

Paine,  J.  Since  the  former  decision  on  the  several  motions  then 
pending,  the  respondent  has  filed  a  return,  to  which  the  relator  has 
demurred.  On  the  argument  the  question  was  raised  whether  or 
not  the  allegations  in  the  petition,  on  which  the  writ  was  issued,  which 
are  not  denied  by  the  return,  are  to  be  considered  as  true.  The  re- 
spondent's counsel  contended  that  they  were  not,  and  that  the  return 
is  the  primary  pleading  in  the  case,  and  that  on  a  demurrer  to  that 
nothing  was  to  be  taken  as  true  except  the  allegations  of  the  return 
itself. 

But  we  do  not  think  this  view  correct.  On  the  contrary,  we  are 
satisfied,  both  from  the  reason  of  the  thing  and  from  the  authorities 
on  the  subject,  that  the  affidavit  or  petition  on  which  the  alternative 
writ  issues,  the  allegations  of  which  are  incorporated  into  the  writ 
itself,  performs  the  office  of  a  declaration.  It  sets  forth  the  grounds 
relied  on  by  the  prosecutor,  as  entitling  him  to  the  peremptory  writ, 
and  it  is  incumbent  on  the  respondent,  by  his  return,  to  sufficiently 
answer  those  allegations,   and  negative  the  prosecutor's   right.     The 

2  2  See  Cye.  "Mandamus,"  p.  463. 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  427 

function  of  the  return  is  not  simply  to  show  what  would  amount  to 
a  prima  facie  right  in  the  respondent,  in  the  absence  of  any  allegation 
to  the  contrary ;  but  it  is  to  show  a  right  to  refuse  obedience  to  the 
writ,  in  view  of  the  allegations  it  contains.  And  if  it  does  not  do 
this,  it  is  demurrable.  And  the  very  object  of  a  demurrer  to  the  re- 
turn is  to  test  its  sufficiency  as  an  answer  to  the  allegations  of  the 
writ;  and  it  is  obvious  that  this  can  only  be  done  by  assuming  all 
the  material  allegations  of  the  writ  not  denied,  nor  confessed  and 
avoided,  to  be  true. 

The  plea  or  answer  which  the  plaintiff  may  put  in  to  the  return  is 
designed  to  enable  him  to  traverse  or  confess  and  avoid  it,  when  it, 
in  the  first  instance,  sufficiently  answers  the  writ,  and  not  to  repeat 
material  allegations  previously  made,  which  had  been  left  entirely 
unanswered,  in  order  to  obtain  the  benefit  of  them. 

We  think,  therefore,  that  the  demurrer  to  the  return  raises  the 
question  of  its  sufficiency,  and  of  the  sufficiency  of  the  relation,  and 
that  in  disposing  of  it,  not  only  the  return,  but  every  material  al- 
legation in  the  relation  not  denied  nor  confessed  and  avoided,  is  to 
be  taken  as  true.     *     *     *  ^^ 


SECTION  49.— SAME— THE  RETURN 


PEOPLE  ex  rel.  AMERICAN  CENT.  RY.  v.  SUPERVISOR  AND 
TOWN  CLERK  OF  OHIO  GROVE  TP.,  MER- 
CER COUNTY. 

(Supreme  Court  of  Illinois,  1869.     51  111.   191.) 

Walker,  J.-*  *  *  *  f  he  demurrer  questions  the  sufficiency  of 
the  return  as  a  defense  to  the  prayer  of  the  information.  The  alter- 
native writ  stands  for  a  declaration,  and  the  return  as  a  plea.  Like 
other  pleas,  it  must  state  facts  positively  and  distinctly.  The  return 
should  set  out  the  facts  fully,  so  as  to  enable  the  relator  to  traverse 
them.  It  is  not  sufficient  to  aver  conclusions  of  law.  If  facts  are 
not  stated,  or  if  insufficiently  stated,  the  plea  will  be  held  bad.  Great- 
er certainty  is  required  in  a  return  than  in  an  ordinary  plea  in  bar. 
Tapping  on  Mandamus,  352,  370 ;  Moses  on  Mandamus,  210.  In 
the  case  of  People  v.  Kilduff,  15  111.  492,  60  Am.  Dec.  769,  it  was 
held  that  every  intendment  would  be  made  against  returns  which  do 
not  answer  important  facts. 

2  3  See  Cyc.  "Mandamus,"  p.  453. 

2  4  Only  a  portion  of  the  opinion  of  Walker,  .T.,  i.s  printed. 


428  UELIKF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

The  return  does  not  deny,  and  we  must  hold  it  to  be  true,  that  an 
election  was  held,  judges  and  clerks  appointed,  and  the  majority  of 
the  votes  cast  were  in  favor  of  subscription.  It  does  not  deny  that 
the  proper  requisition  for  an  election  was  made,  or  that  notices  were 
given  ten  days  before  the  election.  It,  however,  avers  that  the  elec- 
tion was  not  called,  held  and  conducted  according  to  the  requirements 
of  the  act  of  1859,  in  this :  That  there  were  no  legal  notices  posted 
for  the  election  ten  days  previous  thereto,  as  required  by  the  act,  nor 
were  judges  and  clerks  legally  appointed  to  hold  the  election.  There 
is  no  efifort  to  specify  in  what  the  notices  lacked  to  conform  to  the 
legal  requirement,  or  in  what  the  appointment  of  such  ofificers  vio- 
lated the  law  or  failed  to  conform  to  its  requirements.  From  what 
is  averred  in  reference  to  these  acts,  the  facts  are  not  stated  so  that 
the  court  can  determine  whether  they  are  sufficient.  In  this  the 
pleader  has  only  averred  his  conclusion  as  to  the  illegality  of  the  acts 
thus  set  up  and  relied  upon  to  prevent  the  peremptory  writ  from  is- 
suing. The  return  should  have  specified  the  particular  facts  which 
rendered  the  notices  illegal  and  the  acts  omitted  in  appointing  the 
judges  and  clerks.     *     *     *  25 


SECTION  50.— SAME— INTEREST  REQUIRED  TO  BE 
SHOWN 


PIKE  COUNTY  COM'RS   v.   PEOPLE  ex  rel.    METZ. 

(Supreme  Court  of  Illinois,  1849.     11  111.  1202.) 

This  was  a  proceeding  by  mandamus  in  the  Pike  county  circuit 
court,  instituted  by  the  relator  against  the  county  commissioners  of 
that  county,  to  compel  the  payment  to  him  of  the  sum  of  $125,  and 
interest,  which  had  been  originally  appropriated  by  the  Legislature 
to  the  county,  and  by  a  subsequent  law  set  apart  for  the  improvement 
of  the  navigation  of  McKee's  creek,  in  said  county,  to  be  expended 
by  the  relator. 

Treat,  C.  J.-"  It  is  contended  that  the  relator  has  not  such  an 
interest  in  the  fund  sought  to  be  recovered  as  will  authorize  him  to 
prosecute  this  peculiar  remedy.  The  question,  who  shall  be  the  re- 
lator, in  an  application  for  a  mandamus,  depends  upon  the  object  to  be 
attained  by  the  writ.  Where  the  remedy  is  resorted  to  for  the  pur- 
pose of  enforcing  a  private  right,  the  person  interested  in  having  the 

25  See  Comiuonwealtb  ex  rel.  Thomas  v.  Alleghany  County,  37  Pa.  277 
(I860). 

-'•■■  Only  a  portion  of  tlii.s  case  is  printed. 


Ch.  8)  ACTIONS   FOR   SPKCIFIC   RELIEF.  429 

right  enforced  must  become  the  relator.  He  is  considered  as  the 
real  party,  and  his  right  to  the  relief  demanded  must  clearly  appear. 
A  stranger  is  not  permitted  officiously  to  interfere,  and  sue  out  a 
mandamus  in  a  matter  of  private  concern.  But  where  the  object  is 
the  enforcement  of  a  public  right,  the  people  are  regarded  as  the 
real  party,  and  the  relator  need  not  show  that  he  is  interested,  as  a 
citizen,  in  having  the  laws  executed,  and  the  right  in  question  en- 
forced. See  the  case  of  People  v.  Collins,  19  Wend.  (N.  Y.)  56, 
where  this  question  is  much  discussed,  and  the  foregoing  conclusions 
are  clearly  stated.  No  doubt  is  entertained  of  the  right  of  Metz  to 
become  the  relator,  and  pursue  this  remedy.  The  object  of  the  suit 
is  not  a  matter  of  individual  interest,  but  of  public  concern.  Any 
citizen  of  the  county,  especially  of  the  locality  interested  in  having 
the  improvement  prosecuted,  could  become  the  relator,  and  obtain 
the  mandamus.  There  is  a  manifest  propriety  in  permitting  Metz  to 
give  the  information,  and  conduct  the  proceeding.  He  has  the  direc- 
tion of  the  improvement,  and  the  money,  when  received,  is  to  pass 
into  his  hands,  and  be  disbursed  by  him.     *     *     * 


PEOPLE  ex  rel.  DRAKE  v.  REGENTS  OF  UNIVERSITY  OF 
MICHIGAN. 

(Supreme  Court  of  Michigan,  185G.    4  Mich.  OS.) 

This  was  an  application  by  the  relator,  who  was  a  private  citizen 
of  this  state,  for  an  alternative  mandamus  against  the  Regents  of 
the  University  of  Michigan,  founded  upon  his  affidavit,  which  set 
forth  that  he  was  a  citizen  of  this  state,  that  there  was,  at  the  time  of 
filing  his  affidavit,  no  Professor  of  Homoeopathy  in  the  Department 
of  Medicine  of  the  University,  that  the  Regents,  whose  duty  it  was, 
had  not  only  neglected  and  refused  (although  often  requested  there- 
to) to  elect  such  Professor,  but  still  neglected  and  refused  so  to  do. 

The  law,  upon  which  the  application  was  founded  (Sess.  Laws 
1856,  p.  234),  provides:  '"That  the  Regents  shall  have  power  to  en- 
act ordinances,  by-laws,  and  regulations  for  the  government  of  the 
University,  to  elect  a  President,  to  fix,  increase  and  reduce  the  reg- 
ular number  of  Professors  and  tutors,  and  to  appoint  the  same,  and 
to  determine  the  amount  of  their  salaries :  Provided,  there  shall  al- 
ways be,  at  least,  one  Professor  of  Homoeopathy  in  the  Department 
of  Medicine." 

Wing,  J.-''  The  first  objection  is  predicated  upon  the  alleged  in- 
capacity of  an  individual  citizen,  who  is  only  interested  in  common 
with  all  other  citizens  of  the  state  in  the  subject-matter  of  complaint, 
to  institute  a  proceeding  of  this  kind  against  a  public  corporation, 

2  7  Only  a  jwrtion  of  the  opinion  is  printed. 


430  RELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part    2 

sustaining  the  relations  which  the  University  of  Michigan  does  to  this 
state. 

It  is  alleged  that,  where  there  is  a  cause  of  complaint  against  a 
public  body  or  corporation,  it  is  the  duty  of  the  Attorney  General  of 
the  state  to  move  against  them,  and  that  it  would  be  peculiarly  fit,  in 
a  matter  of  complaint  of  so  grave  a  character  as  that  presented  by 
the  affidavit  of  the  relator,  that  it  should  be  presented  by,  or  be  under 
the  control  and  sanction  of,  that  officer,  whose  duty  it  is  to  act  in 
all  such  cases.  To  this  it  is  answered  by  the  counsel  of  the  relator, 
in  substance,  that  though  true  it  is  the  matter  in  question  is  one 
that  interests  the  citizens  generally,  yet  the  right  of  every  citizen 
of  the  state  to  move  in  the  proper  courts  in  a  matter  in  which  the 
citizens  at  large  are  concerned,  and  in  respect  to  which  there  is 
ground  of  complaint  against  a  public  body  or  officers  of  this  state 
that  they  have  neglected  the  performance  of  some  duty  imposed  upon 
them  by  law,  is  fully  sustained  both  by  principle  and  authority. 

Upon  examination  of  the  authorities  cited  by  the  counsel  of  the  re- 
spective parties,  we  find  no  case  decided  by  the  English  courts  which 
sanctions  this  action  of  their  courts  on  an  application  of  this  char- 
acter, upon  the  sole  motion  of  a  private  citizen  of  the  realm.  From 
this  it  is,  we  think,  to  be  inferred  that  the  practice  was  never  sanc- 
tioned by  their  courts. 

On  looking  into  the  American  authorities  cited,  we  find  that  the 
Supreme  Court  of  New  York  have  taken  the  broad  ground  in  the 
case  of  People  v.  Collins,  19  Wend.  64,  and  in  People  v.  Tracy,  1 
Denio,  618,  that  in  all  cases  requiring  redress,  and  involving  a  mat- 
ter in  which  the  interests  of  the  public  at  large  are  concerned,  and  in 
respect  to  which  a  mandamus  is  the  proper  remedy,  it  is  competent  for 
their  courts  to  act  upon  the  relation  and  motion  of  a  private  citizen 
of  the  state.  The  doctrine  of  those  cases  was  approved  and  followed 
by  the  Supreme  Court  of  Illinois  in  the  case  of  County  of  Pike  v. 
State,  11  111.  202.  These  are  the  only  cases  to  which  we  have  been 
cited,  or  which  have  fallen  under  our  observation,  which  sanction 
the  right  claimed  by  the  relator  in  this  case. 

To  these  authorities,  as  we  have  said,  is  opposed  the  fact  that 
the  English  courts,  which  have  moulded  and  formed  the  common 
law,  transmitted  it  to  us,  and  which  govern  both  them  and  us,  have 
not  sustained  a  course  of  proceeding  like  this.  The  courts  of 
Maine,  Massachusetts  and  Pennsylvania  have  maintained  a  doctrine 
on  this  subject  opposed  to  the  New  York  and  Illinois  cases,  and  have 
held  that,  to  entitle  an  individual  citizen  to  be  heard  as  a  relator  and 
on  his  own  motion,  he  must  show  that  he  has  some  individual  in- 
terest in  the  subject-matter  of  complaint  which  is  not  common  to  all 
the  citizens  of  the  state;  and  whilst  we  do  not  intend  to  say  that  a 
case  may  not  arise  in  which  this  court  would  allow  an  individual  to 
file  such  a  complaint,  particularly  if  the  Attorney  General  or  prose- 
cuting attorney  (as  the  case  may  be)  were  absent,  or  refused  to  act 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  431 

without  good  cause,  we  nevertheless  express  our  conviction  that  this 
is  a  case  in  which  the  action  of  the  Attorney  General  would  have  been 
proper  and  necessary.     *     *     *  -** 


SECTION  51.— MANDAMUS  AGAINST  BOARD  OR  PUBLIC 
CORPORATION 


COMMISSIONERS  v.  SELLEW. 

(Supreme  Court  of  the  United  States,  1878.     99  U.  S.  624.  25  L.   Ed.  333.) 

Waite,  C.  J."^  *  *  *  In  United  States  v.  Boutwell,  17  Wall. 
604,  31  L.  Ed.  721,  it  was  decided  that,  as  a  mandamus  was  used 
"to  compel  the  performance  of  a  duty  resting  upon  the  person  to 
whom  the  writ  is  sent,"  if  directed  to  a  public  officer,  it  abated  on  his 
death  or  his  retirement  from  office,  because  it  could  not  reach  the  of- 
fice. That  principle  does  not,  as  we  think,  apply  to  this  case.  There 
the  officer  proceeded  against  was  the  Secretary  of  the  Treasury 
of  the  United  States,  and  the  writ  was  "aimed  exclusively  against 
him  as  a  person."  Here  the  writ  is  sent  against  the  board  of  county 
commissioners,  a  corporation  created  and  organized  for  the  express 
purpose  of  performing  the  duty,  among  others,  which  the  relator 
seeks  to  have  enforced.  The  alternative  writ  was  directed  both  to 
the  board  in  its  corporate  capacity  and  to  the  individual  members  by 
name,  but  the  peremptory  writ  was  ordered  against  the  corporation 
alone.  As  the  corporation  can  only  act  through  its  agents,  the  courts 
will  operate  upon  the  agents  through  the  corporation.  When  a  copy 
of  the  writ  which  has  been  ordered  is  served  upon  the  clerk  of  the 
board,  it  will  be  served  on  the  corporation,  and  be  equivalent  to  a 
command  that  the  persons  who  may  be  members  of  the  board  shall 
do  what  is  required.  If  the  members  fail  to  obey,  those  guilty  of 
disobedience  may,  if  necessary,  be  punished  for  the  contempt.  Al- 
though the  command  is  in  form  to  the  board,  it  may  be  enforced 
against  those  through  whom  alone  it  can  be  obeyed.  One  of  the  ob- 
jects in  creating  such  corporations,  capable  of  suing  and  being  sued, 
and  having  perpetual  succession,  is  that  the  very  inconvenience  which 
manifested  itself  in  Boutwell's  Case  may  be  avoided.  In  this  way 
the  office  can  be  reached  and  the  officer  compelled  to  perform  its 
duties,  no  matter  what  changes  are  made  in  the  agents  by  whom  the 
officer  acts.     The  board  is  in  effect  the  officer,  and  the  members  of 

28  See  an  article  by  Prof.  F.  J.  Goodnow  on  "Interest  in  Mandamus  Cases," 
Political  Science  Quarterly,  VIII,  p.  48. 

2  9  Only  a  portion  of  the  opinion  of  Waite,  O.  J.,  is  printed. 


432  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part   3 

the  board  are  but  the  agents  who  perform  its  duties.  While  the 
board  is  proceeded  against  in  its  corporate  capacity,  the  individual 
members  are  punished  in  their  natural  capacities  for  failure  to  do 
what  the  law  requires  of  them  as  the  representatives  of  the  corpo- 
ration. 

We  think,  therefore,  that  the  peremptory  writ  was  properly  di- 
rected to  the  board  in  its  corporate  capacity.  In  this  way  the  power 
of  the  writ  is  retained  until  the  thing  is  done  which  is  commanded, 
and  it  may  at  all  times  be  enforced,  through  those  who  are  for  the 
time  being  charged  with  the  obligation  of  acting  for  the  corporation. 
If  in  the  course  of  the  proceedings  it  appears  that  a  part  of  the  mem- 
bers have  done  all  they  could  to  obey  the  writ,  the  court  will  take 
care  that  only  those  who  are  actually  guilty  of  disobedience  are 
made  to  suffer  for  the  wrong  that  is  done.  Those  who  are  members 
of  the  board  at  the  time  when  the  board  is  required  to  act  will  be 
the  parties  to  whom  the  court  will  look  for  the  performance  of  what 
is  demanded.  As  the  corporation  cannot  die  or  retire  from  the  office 
it  holds,  the  writ  cannot  abate  as  it  did  in  Boutwell's  Case.  The  de- 
cisions in  the  state  courts  in  which  this  practice  is  sustained  are 
numerous.  Maddox  v.  Graham,  2  Mete.  (Ky.)  56;  State  ex  rel. 
Soutter  V.  City  of  Madison,  15  Wis.  30 ;  Pegram  v.  Commissioners 
of  Cleaveland  Countv,  65  N.  C.  114;  People  v.  Collins,  1!)  Wend. 
(N.  Y.)  56.     *     *     '' '' 


SECTION  52.— REFUSAL  TO  OBEY  MANDAMUS 
AMY  V.  SUPERVISORS. 

(Supreme  Court  of  the  United  States,  1870.     11  Wall.  136,  20  L.  Ed.  101.) 

Amy  having  obtained  a  judgment  for  money  against  Des  Moines 
County,  Iowa,  in  the  Circuit  Court  for  the  District  of  Iowa,  and  not 
'being  paid,  procured  from  the  same  court  a  mandamus  against  Burk- 
'holder  and  several  others,  the  supervisors  of  the  county,  to  compel 
•the  levy  of  a  tax.  The  mandamus  not  being  obeyed,  he  sued  them 
personally.  They  set  up  certain  defenses,  to  which  he  demurred.  The 
court  overruled  the  demurrer,  and  he  brought  the  case  here. 

S WAYNE,  J.'"*^  *  *  *  The  rule  is  well  settled  that  where  the 
law  requires  absolutely  a  ministerial  act  to  be  done  by  a  public  officer, 
and  he  neglects  or  refuses  to  do  such  act,  he  may  be  compelled  to  re- 
spond in  damages  to  the  extent  of  the  injury  arising  from  his  conduct. 
There  is  an  unbroken  current  of  authorities  to^  this  effect.    A  mistake 

3  0  See,  also,  City  of  Ottawa  v.  People,  48  111.  233  (18G8). 
31  Only  a  portion  of  the  opinion  of  Swayne,  J.,  is  printed. 


Ch.  8)  ACTIONS  FOR  SPECIFIC   RELIEF.  433 

as  to  his  duty  and  honest  intentions  will  not  excuse  the  offender. 
The  question  of  the  rule  by  which  the  measure  of  damages  is  to  be 
ascertained  is  not  before  us,  and  we  do  not  feel  called  upon  to  ex- 
press any  opinion  upon  the  subject. 

The  defenses  set  up  in  the  answer  of  the  defendants  are   clearly 
bad.    The  demurrer  should  have  been  sustained.     *     *     *  ^- 


SECTION  53.— PROVINCE  OF  THE  WRIT  OF  MANDAMUS 


HASSEL'S  CASE. 

(Court  of  King's  Bench,  1719.     1  Str.  211.) 

Fazakerley  moved  for  a  mandamus  to  be  directed  to  the  justices 
of  peace  of  the  county  of  Chester,  commanding  them  to  make  a  rate 
to  reimburse  one  Hassel  the  money  he  had  expended  as  surveyor  of 
j    the  highways.    And  it  was  granted. 


JOHN  GILES'  CASE. 

(Court  of  King's  Bench,  1731.     2  Str.  881.) 

Mr.  Reeve  moved  for  a  mandamus  to  the  justices  of  the  city  of 
Worcester,  to  grant  a  license  to  Giles  to  keep  an  alehouse,  insisting 
that,  it  being  within  a  city,  St.  Geo.  II,  c.  28,  did  not  extend  to  it. 

Strange,  contra,  insisted  that  it  was  discretionary  in  the  justices, 
and  cited  Stephens  v.  Watson,  1  Salk.  45,  that  no  appeal  lies  from  the 
denial  of  a  license,^^  and  if  the  owner  be  committed,  the  want  of  a 
license  can  only  come  in  question,  and  not  the  reason  why  it  was 

I    denied. 

;       Et  Per  Curiam.     There  never  was  an  instance  of  such  a  manda- 

i   mus,  and  therefore  we  will  not  grant  it. 

( 

I 

3  2  Disobedience  to  the  writ  of  mandamus  constitutes  contempt  of  court, 
and  is  punishable  by  fine  and  imprisonment.    Cye.  "Mandamus,"  p.  499. 

3  3  "It  was  said  by  Mr.  Nares  in  the  case  of  Rex.  v.  Young  and  Pitts,  Esq., 
B.  R.  20th  April,  1758,  that  the  sole  reason  why  the  justices  of  the  peace  re- 
fused tlie  license  in  this  case  was  because  Giles  had  signed  a  petition  to  erect 
a  worlvhouse,  and  though  the  refusal  was  so  ill  founded,  yet  the  mandamus 
was  denied.  MSS.  See,  also,  the  report  of  that  case.  1  Burr,  556.  (Note  by 
Reporter.) 

FR.ADjr.LAW— 28 


434  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part   2 

KING  V.  BISHOP  OF  LITCHFIELD. 

(Court  of  King's  Bench,  1734.     7  Mod.  217.) 

Mandamus  to  Bishop  to  license  a  person  elected  usher  to  a  gram- 
mar school. 

Lord  Hardvvicke,  Chief  Justice.^*  *  *  *  jf  ^\^q  bishop  here 
acts  judicially,  a  mandamus  lies  not  to  compel  him  to  grant  a  license, 
but  only  to  determine  the  one  way  or  the  other ;  as  we  often  grant 
them  to  give  sentence,  generally,  without  directing  them  what  sentence 
to  give,  so  to  give  judgment  in  inferior  courts;  but  if  he  acts  minis- 
terially, and  it  appears  to  us  that  the  person  applying  for  a  mandamus 
is  qualified  for  the  office  he  prays  to  be  admitted  to,  then  a  manda- 
mus goes  requiring  his  admission.  I  should  doubt  whether  he  acts 
in  a  judicial  capacity  in  this  place.     *     *     ^i^  35 


KENDALL  v.  UNITED  STATES  ex  rel.  STOKES. 
(Supreme  Court  of  United  States,  1838.     12  Pet.  524,  9  L.  Ed.  1181.) 

Error  to  the  Circuit  Court  of  the  District  of  Columbia. 

The  Circuit  Court  had  ordered  a  peremptory  mandamus,  to  be  di- 
rected against  the  Postmaster  General,  to  be  issued.  The  Postmaster 
General  prosecuted  this  w^it  of  error. 

Thompson,  Justice,  delivered  the  opinion  of  the  court. ^^ 

This  case  comes  up  on  a  writ  of  error  from  the  Circuit  Court  of 
the  United  States  for  the  District  of  Columbia,  sitting  for  the  county 
of  Washington.  This  case  was  brought  before  the  court  below  by 
petition  setting  out  certain  contracts  made  between  the  relators  and 
the  late  Postmaster  General,  upon  which  they  claimed  certain  credits 
and  allowances  upon  their  contracts  for  the  transportation  of  the  mail ; 
that  credits  and  allowances  wer€  duly  made  by  the  late  Postmaster 
General ;  that  the  present  Postmaster  General,  when  he  came  into  of- 
fice, re-examined  the  contracts  entered  into  with  his  predecessor,  and 
the  allowances  made  by  him,  and  the  credits  and  payments  which  had 
been  made,  and  directed  that  the  allowances  and  credits  should  be 
withdrawn,  and  the  relators  recharged  with  divers  payments  they  had 
received ;  that  the  relators  presented  a  memorial  to  Congress  on  the 
subject,  upon  which  a  law  was  passed  on  the  21st  of  July,  183G.  for 
their  relief,  by  which  the  Solicitor  of  the  Treasury  was  authorized 
and  directed  to  settle  and  adjust  the  claims  of  the  relators  for  extra 
services  performed  by  them,  to  inquire  into  and  determine  the  equity 

34  Only  a  portion  of  the  opinion  by  Lord  Hardwicke  is  printed. 

35  See  Rex  v.  Aslcew,  4  Burr.  2189  (17G8)  ;  Rex  v.  Archbishop  of  Canter- 
bury, 1.5  East,  142  (1812). 

3  6  Only  a  portion  of  this  case  is  here  printed. 


Ch.  8)  ACTIONS  FOR  SPECIFIC  RELIEF.  435 

of  such  claims,  and  to  make  the  relators  such  allowances  therefor  as, 
upon  full  examination  of  all  the  evidence,  may  seem  right,  according 
to  the  principles  of  equity ;  and  that  the  Postmaster  General  be  and 
he  is  hereby  directed  to  credit  the  relators  with  whatever  sum  or 
sums  of  money,  if  any,  the  Solicitor  shall  so  decide  to  be  due  to  them, 
for  and  on  account  of  any  such  service  or  contract.  And  the  petition 
further  sets  out  that  the  Solicitor,  Virgil  Alaxey,  assumed  upon  him- 
self the  performance  of  the  duty  and  authority  created  and  conferred 
iupon  him  by  the  law,  and  did  make  out  and  communicate  his  decision 
'and  award  to  the  Postmaster  General,  by  which  award  and  decision 
[the  relators  were  allowed  $161,563.89;  that  the  Postmaster  General,  on 
'being  notified  of  the  award,  only  so  far  obeyed  and  carried  into  exe- 
jcution  the  act  of  Congress  as  to  direct,  and  cause  to  be  carried  to  the 
I  credit  of  the  relators,  the  sum  of  $122,102.46;  but  that  he  has  and 
i still  does  refuse  and  neglect  to  credit  the  relators  with  the  residue  of 
ithe  sum  so  awarded  by  the  solicitor,  amounting  to  $39,462.43.  And 
the  petition  prayed  the  court,  to  award  a  mandamus,  directed  to  the 
'Postmaster  General,  commanding  him  fully  to  comply  with,  obey  and 
jexecute  the  said  act  of  Congress,  by  crediting  the  relators  with  the 
[full  and  entire  sum  awarded  in  their  favor  by  the  Solicitor  of  the 
ITreasury.  Such  proceedings  were  afterwards  had  in  the  case  that 
la  peremptory  mandamus  was  ordered,  commanding  the  said  Amos 
■Kendall,  Postmaster  General,  forthwith  to  credit  the  relators  with  the 
IfuU  amount  awarded  and  decided  by  the  Solicitor  of  the  Treasury  to 
;be  due  to  the  relators. 

!  The  questions  arising  upon  this  case  may  be  considered  under  two 
(general  inquiries :  (1)  Does  the  record  present  a  proper  case  for  a 
mandamus?  And  i£  so,  then  (2)  had  the  Circuit  Court  of  this  Dis- 
'crict  jurisdiction  of  the  case,  and  authority  to  issue  the  writ? 

Under  the  first  head  of  inquiry,  it  has  been  considered  by  the  coun- 
sel on  the  part  of  the  Postmaster  General  that  this  is  a  proceeding- 
igainst  him  to  enforce  the  performance  of  an  official  duty.  And  the 
jroceeding  has  been  treated  as  an  infringement  upon  the  executive 
lepartment  of  the  government,  which  has  led  to  a  very  extended 
"ange  of  argument  on  the  independence  and  duties  of  that  depart- 
|nent,  but  which,  according-  to  the  view  taken  by  the  court  of  the  case, 
is  entirely  misapplied.     We  do  not  think  the  proceedings  in  this  case 

fiterfere,  in  any  respect  whatever,  with  the  rights  or  duties  of  the 
xecutive;  or  that  it  involves  any  conflict  of  powers  between  the  ex- 
itcutive  and  judicial  departments  of  the  government.  The  mandamus 
loes  not  seek  to  direct  or  control  the  Postmaster  General  in  the  dis- 
harge  of  any  official  duty,  partaking  in  any  respect  of  an  executive 
haracter,  but  to  enforce  the  performance  of  a  mere  ministerial  act, 
/hich  neither  he  nor  the  President  had  any  authority  to  deny  or 
ontrol. 

We  shall  not,  therefore,  enter  into  any  particular  examination  of 
he  line  to  be  drawn  between  the  powers  of  the  executive  and  judi- 


436    ^  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part   2 

cial  departments  of  the  government.  The  theory  of  the  Constitution 
undoubtedly  is  that  the  great  powers  of  the  government  are  divided 
into  separate  departments ;  and  so  far  as  these  powers  are  derived 
from  the  Constitution,  the  departments  may  be  regarded  as  independ- 
ent of  each  other.  But,  beyond  that,  all  are  subject  to  regulations  by 
law  touching  the  discharge  of  the  duties  required  to  be  performed. 

The  executive  power  is  vested  in  a  President ;  and  so  far  as  his 
powers  are  derived  from  the  Constitution,  he  is  beyond  the  reach  of 
any  other  department,  except  in  the  mode  prescribed  by  the  Constitu- 
tion through  the  impeaching  power.  But  it  by  no  means  follows  that 
every  officer  in  every  branch  of  that  department  is  under  the  exclu- 
sive direction  of  the  President.  Such  a  principle,  we  apprehend,  is 
not  and  certainly  cannot  be  claimed  by  the  President.  There  are  cer- 
tain political  duties  imposed  upon  many  officers  in  the  executive  de- 
])artment,  the  discharge  of  which  is  under  the  direction  of  the  Presi- 
dent. But  it  would  be  an  alarming  doctrine  that  Congress  cannot 
impose  upon  any  executive  officer  any  duty  they  may  think  proper, 
which  is  not  repugnant  to  any  rights  secured  and  protected  by  the 
Constitution ;  and  in  such  cases  the  duty  and  responsibility  grow  out 
of  and  are  subject  to  the  control  of  the  law,  and  not  to  the  direction 
of  the  President.  And  this  is  emphatically  the  case,  where  the  duty 
enjoined  is  of  a  mere  ministerial  character.     *     =i=     * 

Under  this  law,  the  Postmaster  General  is  vested  with  no  discre- 
tion or  control  over  the  decisions  of  the  Solicitor;  nor  is  any  appeal 
or  review  of  that  decision  provided  for  by  the  act.  The  terms  of  the 
submission  was  a  matter  resting  entirely  in  the  discretion  of  Con- 
gress ;  and  if  they  thought  proper  to  vest  such  a  power  in  any  one, 
and  especially  as  the  arbitrator  was  an  officer  of  the  government,  it 
did  not  rest  with  the  Postmaster  General  to  control  Congress,  or  the 
Solicitor,  in  that  affair.     ■''     *     * 

It  was  urged  at  the  bar  that  the  Postmaster  General  was  alone  sub- 
ject to  the  direction  and  control  of  the  President,  with  respect  to  the  '■ 
execution  of  the  duty  imposed  upon  him  by  this  law ;  and  this  right : 
of  the  President  is  claimed  as  growing  out  of  the  obligation  imposed 
upon  him  by  the  Constitution  to  take  care  that  the  laws  be  faithfully 
executed.  This  is  a  doctrine  that  cannot  receive  the  sanction  of  this 
court.  It  would  be  vesting  in  the  President  a  dispensing  power, 
which  has  no  countenance  for  its  support  in  any  part  of  the  Consti- 
tution, and  is  asserting  a  principle  which,  if  carried  out  in  its  results 
to  all  cases  falling  within  it,  would  be  clothing  the  President  with  a 
power  entirely  to  control  the  legislation  of  Congress,  and  paralyze  the 
administration  of  justice.^'' 

To  contend  that  the  obligation  imposed  on  the  President  to  see  the 
laws   faithfully  executed  implies  a  power  to   forbid  their  execution 

•"•-  See  Bayard  v.  United  States  ex  rel.  White,  127  U.  S.  24G,  8  Sup.  Ct.  1223, 
32  L.  Ed.  116  (1888),  last  paragraph. 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  437 

is  a  novel  construction  of  the  Constitution,  and  entirely  inadmissible. 
;  But  although  the  argument  necessarily  leads  to  such  a  result,  we  do 
not  perceive  from  the  case  that  any  such  power  has  been  claimed  by 
the  President.  But,  on  the  contrary,  it  is  fairly  to  be  inferred  that 
such  power  was  disclaimed.  He  did  not  forbid  or  advise  the  Post- 
master General  to  abstain  from  executing  the  law,  and  giving  the 
credit  thereby  required,  but  submitted  the  matter  in  a  message  to 
Congress.     *     *     * 

The  right  of  the  relators  to  the  benefit  of  the  award  ought  now  to 
be  considered  as  irreversibly  established ;  and  the  question  is,  whether 
they  have  any,  and  what,  remedy?  The  act  required  by  the  law  to  be 
done  by  the  Postmaster  General  is  simply  to  credit  the  relators  with 
the  full  amount  of  the  award  of  the  Solicitor.  This  is  a  precise,  defi- 
nite act,  purely  ministerial,  and  about  which  the  Postmaster  General 
had  no  discretion  whatever.  The  law,  upon  its  face,  shows  the  exist- 
ence of  accounts  between  the  relators  and  the  Post  Office  Department. 
No  money  was  required  to  be  paid,  and  none  could  have  been  drawn 
out  of  the  treasury,  without  further  legislative  provision,  if  this  credit 
should  overbalance  the  debit  standing  against  the  relators.  But  this 
was  a  matter  with  which  the  Postmaster  General  had  no  concern.  He 
was  not  called  upon  to  furnish  the  means  of  paying  such  balance,  if 
any  should  be  found ;  he  was  simply  required  to  give  the  credit. 
This  was  not  an  official  act  in  any  other  sense  than  being  a  transac- 
tion in  the  department  where  the  books  and  accounts  were  kept,  and 
I  was  an  official  act  in  the  same  sense  that  an  entry  in  the  minutes  of  a 
!  court,  pursuant  to  an  order  of  the  court,  is  an  official  act.  There  is 
jno  room  for  the  exercise  of  any  discretion,  official  or  otherwise.  All 
that  is  shut  out  by  the  direct  and  positive  command  of  the  law,  and 
the  act  required  to  be  done  is,  in  every  just  sense,  a  mere  ministerial 
act. 

I  And  in  this  view  of  the  case,  the  question  arises,  is  the  remedy  by 
mandamus  the  fit  and  appropriate  remedy?  The  common  law,  as  it 
was  in  force  in  Maryland,  when  the  cession  was  made,  remained  in 
force  in  this  District.  We  must,  therefore,  consider  this  writ  as  it 
was  understood  at  the  common  law,  with  respect  to  its  object  and 
purpose,  and  varying  only  in  the  form  required  by  the  diflFerent  char- 
acter of  our  government.  It  is  a  writ,  in  England,  issuing  out  of 
the  King's  Bench,  in  the  name  of  the  king,  and  is  called  a  preroga- 
tive writ,  but  considered  a  writ  of  right;  ^^  and  is  directed  to  some 
person,  corporation  or  inferior  court,  requiring  them  to  do  some  par- 
ticular thing,  therein  specified,  which  appertains  to  their  office  or 
duty,  and  which  is  supposed  to  be  consonant  to  right  and  justice,  and 
Jwhere  there  is  no  other  adequate  specific  remedy.  Such  a  writ,  and 
'for  such  a  purpose,  would  seem  to  be  peculiarly  appropriate  to  the 

38  See  People  ex  rel.  etc.,  v.  Common  Council,  etc.,  78  N.  Y.  50,  Gl   (1S79), 
post,  p.  .100. 


438  i;r,i.ii:F  A(;ai\st  admixistrativi:  actiox.  (i'lirt  2 

present  case.  The  right  claimed  is  just  and  established  by  positive 
law ;  and  the  duty  required  to  be  performed  is  clear  and  specific,  and 
there  is  no  other  adequate  remedy. 

The  remedies  suggested  at  the  bar  were,  then,  an  application  to 
Congress,  removal  of  the  Postmaster  General  from  office,  and  an  ac- 
tion against  him  for  damages.  The  first  has  been  tried  and  failed. 
The  second  might  not  afl:'ord  any  certain  relief,  for  his  successors 
might  withhold  the  credit  in  the  same  manner ;  and,  besides,  such 
extraordinary  measures  are  not  the  remedies  spoken  of  in  the  law 
which  will  supersede  the  right  of  resorting  to  a  mandamus ;  and  it 
is  seldom  that  a  private  action  at  law  will  afford  an  adequate  remedy. 
If  the  denial  of  the  right  be  considered  as  a  continuing  injury,  to  be 
redressed  by  a  series  of  successive  actions,  as  long  as  the  right  is  de- 
nied, it  would  avail  nothing,  and  never  furnish  a  complete  remedy. 
Or,  if  the  whole  amount  of  the  award  claimed  should  be  considered 
the  measure  of  damages,  it  might,  and  generally  would,  be  an  inade- 
quate remedy,  where  the  damages  were  large.  The  language  of  this 
court,  in  the  case  of  Osborn  v.  United  States  Bank,  9  Wheat.  844,  6 
L.  Ed.  204,  is  that  the  remedy  by  action  in  such  cases  would  have 
nothing  real  in  it.  It  would  be  a  remedy  in  name  only,  and  not  in 
substance,  especially  where  the  amount  of  damages  is  beyond  the  ca- 
pacity of  a  party  to  pay. 

That  the  proceeding  on  a  mandamus  is  a  case  within  the  meaning 
of  the  act  of  Congress  has  been  too  often  recognized  in  this  court 
to  require  any  particular  notice.  It  is  an  action  or  suit  brought  in 
a  court  of  justice,  asserting  a  right,  and  is  prosecuted  according  to 
the  forms  of  judicial  proceedings.-'® 


DECATUR  V.  PAULDING. 

(Supreme  Court  of  the  United  States,  1840.     14  Pet.  497,  10  L.  Ed.  559.) 

Taney,  C.  J.,  delivered  the  opinion  of  the  court. 

This  case  is  brought  here  by  a  writ  of  error  from  the  judgment  of 
the  Circuit  Court  of  the  United  States  for  the  District  of  Columbia, 
refusing  to  award  a  peremptory  mandamus.  The  material  facts  in 
the  case  are  as  follows : 

By  an  act  of  Congress,  passed  on  the  3d  of  March,  1837,  the  widow 
of  an  officer  who  died  in  the  naval  service  became  entitled  to  re- 
ceive out  of  the  navy  pension  fund  half  the  monthly  pay  to  which 
the  deceased  officer  would  have  been  entitled  under  the  acts   reg- 

.19  For  latter  part  of  ojjiuion,  see  post,  p.  454. 

Stokes  subsequently  brought  an  action  for  damages  against  Kendall,  but 
it  was  held  that  the  refusal  to  credit  the  amount  in  question  did  not  consti- 
tute an  actionable  wrong;  also  that  the  plaintifC  could  not  resort  both  to 
mandamus  and  to  an  action  for  damages.  Kendall  v.  Stokes,  3  How.  87,  11 
L.  Ed.  506  (1845). 


Cll.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  439 

ulating  the  pay  of  the  navy  in  force  on  the  1st  day  of  January,  1835 ; 
the  half  pay  to  commence  from  the  time  of  the  death  of  such  officer, 
and  upon  the  death  or  intermarriage  of  such  widow,  to  go  to  the 
child  or  children  of  the  officer.  On  the  same  day,  the  following 
resolution  was  passed  by  Congress : 

"No.  2.  Resolution  granting  a  pension  to  Susan  Decatur,  widow  of 
the  late  Stephen  Decatur. 

"Resolved,  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  that  Mrs.  Susan 
Decatur,  widow  of  the  late  Commodore  Stephen  Decatur,  be  paid 
from  the  navy  pension  fund  a  pension,  for  five  years,  commencing 
from  the  30tlT  day  of  June,  1834,  in  conformity  with  the  provisions 
of  the  act  concerning  naval  pensions  and  the  navy  pension  fund, 
passed  the  30th  of  June,  1834,  and  that  she  be  allowed,  from  said  fund, 
the  arrearages  of  the  half  pay  of  a  post  captain,  from  the  death  of 
Commodore  Decatur,  to  the  30th  of  June,  1834,  together  Avith  the 
pension  hereby  allowed  her,  and  that  the  arrearage  of  said  pension 
1)6  vested  in  the  Secretary  of  the  Treasury,  in  trust  for  the  use  of 
the  said  Susan  Decatur:  Provided  that  the  said  pension  shall  cease 
on  the  death  or  marriage  of  the  said  Susan  Decatur. 

"Approved,  jNIarch  3,  1837." 

By  the  act  of  Congress  of  July  10,  183,2,  the  Secretary  of  the  Navy 
is  constituted  the  trustee  of  the  navy  pension  fund,  and  as  such  it 
is  made  his  duty  to  grant  and  pay  the  pensions,  according  to  the 
terms  of  the  acts  of  Congress. 

After  the  passage  of  the  law  and  resolution  of  March  3,  1837, 
Mrs.  Susan  Decatur,  the  widow  of  Commodore  Decatur,  applied  to 
Mahlon  Dickerson,  then  Secretary  of  the  Navy,  to  be  allowed  the 
half  pay  to  which  she  was  entitled  under  the  general  law  above  men- 
tioned, and  also  the  pension  and  arrearages  of  half  pay  specially  pro- 
vided for  her  by  the  resolution  passed  on  the  same  day.  The  Sec- 
retary of  the  Navy,  it  appears,  doubted  whether  she  was  entitled  to 
both,  and  referred  the  matter  to  the  Attorney  General,  who  gave  it 
as  his  opinion  that  Mrs.  Decatur  was  not  entitled  to  both,  but  that 
she  might  take  under  either,  at  her  election.  The  Secretary  there- 
upon informed  her  of  the  opinion  of  the  Attorney  General,  offering 
at  the  same  time  to  pay  her  under  the  law,  or  the  resolution,  as  she 
might  prefer.  JMrs.  Decatur  elected  to  receive  under  the  law ;  but 
it  is  admitted  by  the  counsel  on  both  sides  that  she  did  not  ac- 
quiesce in  this  decision,  but  protested  against  it,  and  by  consenting  to 
receive  the  amount  paid  her  she  did  not  mean  to  waive  any  right 
she  might  have  to  the  residue. 

Some  time  afterwards  Mr.  Dickerson  retired  from  the  office  of 
Secretary  of  the  Navy,  and  was  succeeded  by  Mr.  Paulding,  the  de- 
fendant in  this  writ  of  error;  and  in  the  fall  of  1838  Mrs.  Decatur 
applied  to  him  to  revise  the  decision  of  his  predecessor,  and  to  allow 
her  the  pension  provided  by  the  resolution.     The  Secretary  declined 


440  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

doing-  so,  whereupon  Mrs.  Decatur  applied  to  the  circuit  court  for 
Wasliington  county,  in  the  District  of  Cokimbia,  for  a  mandamus  to 
compel  him  to  pay  the  amount  she  supposed  to  be  due  to  her.  A 
rule  to  show  cause  was  granted  by  the  court;  and  upon  a  return 
made  by  him,  stating",  among  other  things,  the  facts  above  mentioned, 
the  court  refused  the  application  for  a  peremptory  mandamus.  It 
is  this  decision  we  are  now  called  on  to  revise. 

In  the  case  of  Kendall  v.  United  States,  12  Pet.  524,  9  L.  Ed. 
1181,  it  was  decided  in  this  court  that  the  circuit  court  for  Washing- 
ton county,  in  the  District  of  Columbia,  has  the  power  to  issue  a 
mandamus  to  an  officer  of  the  federal  government,  commanding  him 
to  do  a  ministerial  act.  The  first  question,  therefore,  to  be  consid- 
ered in  this  case,  is  whether  the  duty  imposed  upon  the  Secretary 
of  the  Navy,  by  the  resolution  in  favor  of  Mrs.  Decatur,  was  a 
mere  ministerial  act.  The  duty  required  by  the  resolution  was  to 
be  performed  by  him,  as  the  head  of  one  of  the  executive  depart- 
ments of  the  government,  in  the  ordinary  discharge  of  his  official 
duties.  In  general,  such  duties,  whether  imposed  by  act  of  Con- 
gress or  by  resolution,  are  not  mere  ministerial  duties.  The  head  of 
an  executive  department  of  the  government,  in  the  administration  of 
the  various  and  important  concerns  of  his  office,  is  continually  re- 
quired to  exercise  judgment  and  discretion.  He  must  exercise  his 
judgment  in  expounding  the  laws  and  resolutions  of  Congress,  under 
which  he  is,  from  time  to  time,  required  to  act.  If  he  doubts,  he  has 
a  right  to  call  on  the  Attorney  General  to  assist  him  with  his  coun- 
sel ;  and  it  would  be  difficult  to  imagine  why  a  legal  adviser  was 
provided  by  law  for  the  heads  of  departments,  as  well  as  for  the 
President,  unless  their  duties  were  regarded  as  executive,  in  which 
judgment  and  discretion  was  to  be  exercised. 

If  a  suit  should  come  before  this  court,  which  involved  the  construc- 
tion of  any  of  these  laws,  the  court  certainly  would  not  be  bound  to 
adopt  the  construction  given  by  the  head  of  a  department.  And  if 
they  supposed  his  decision  to  be  wrong,  they  would,  of  course,  so 
pronounce  their  judgment.  But  their  judgment  upon  the  construc- 
tion of  a  law  must  be  given  in  a  case  in  which  they  have  jurisdiction, 
and  in  which  it  is  their  duty  to  interpret  the  act  of  Congress,  in  or- 
der to  ascertain  the  rights  of  the  parties  in  the  cause  before  them. 
The  court  could  not  entertain  an  appeal  from  the  decision  of  one 
of  the  Secretaries  nor  revise  his  judgment  in  any  case,  where  the 
law  authorized  him  to  exercise  discretion  or  judgment.  Nor  can 
it,  by  mandamus,  act  directly  upon  the  officer,  and  guide  and  control 
his  judgment  or  discretion  in  the  matters  committed  to  his  care,  in  the 
ordinary  discharge  of  his  official  duties. 

The  case  before  us  illustrates  these  principles,  and  shows  the  dif- 
ference between  executive  duties  and  ministerial  acts.  The  claim 
of  Mrs.  Decatur  having  been  acted  upon  by  his  predecessor  in  office, 
the  Secretary  was  obliged  to  determine  whether  it  was  proper  to  re- 


\  Ch.  8)                                    ACTIONS   FOR   SrECIFIC    RELIEF.                                          441 

1  vise  that  decision.     If  he  had  determined  to  revise  it,  he  must  have 

I  exercised  his  judgment  upon  the  construction  of  the  law  and  the 
resohition,  and  have  made  up  his  mind  whether  she  was  entitled  un- 
der one  only,  or  under  both.  And  if  he  determined  that  she  was 
entitled  under  the  resolution  as  well  as  the  law,  he  must  then  have 

i  again  exercised  his  judgment,  in  deciding  whether  the  half  pay  al- 

,  lowed  her  was  to  be  calculated  by  the  pay  proper,  or  the  pay  and 

!  emoluments   of  an  officer  of  the  commodore's   rank.     And   after  all 

j  this  was  done,  he  must  have  inquired  into  the  condition  of  the  navy 

,;  pension  fund,  and  the  claims  upon  it,  in  order  to  ascertain  whether 

,;  there  was  money  enough  to  pay  all  the  demands  upon  it,  and  if  not 
money  enough,  how  it  was  to  be  apportioned  among  the  parties  en- 

1  titled.     A  resolution  of  Congress,  requiring  the  exercise  of  so  much 

!  judgment  and  investigation,  can,  with  no  propriety,  be  said  to  com- 

i  mand  a  mere  minsterial  act  to  be  done  by  the  Secretary. 

I  The  interference  of  the  courts  with  the  performance  of  the  ordi- 

!  nary  duties  of  the  executive  departments  of  the  government  would 

!  be  productive   of   nothing  but   mischief,   and   we   are   quite   satisfied 

j  that  suck  a  power  was  never  intended  to  be  given  to  them.     Upon 

'  the   very   subject   before   us,    the   interposition   of    the   courts    might 

'  throw  the  pension  fund  and  the  whole  subject  of  pensions  into  the 

i  greatest  confusion  and  disorder.     It  is  understood,   from  the  Secre- 

j  tary's  return  to  the  mandamus,  that  in  allowing  the  half  pay  it  has 

I  always  been  calculated  by  the  pay  proper,   and  that  the   rations  or 

I  emoluments  to  which  the  officer  was  entitled  have  never  been  brought 

I  into  the  calculation.     Suppose  the  court  had  deemed  the  act  required 

'  by  the  resolution  in  question  a  fit  subject  for  a  mandamus,  and,  in 

1  expounding  it,  had  determined  that  the  rations   and   emoluments  of 

j  the  officer  were  to  be  considered  in   calculating  the  half  pay.     We 

i  can  readily  imagine   the  confusion  and  disorder  into  which  such   a 

I  decision   would  throw  the  whole   subject  of  pensions  and  half   pay, 

I  which  now  forms  so  large  a  portion  of  the  annual  expenditure  of  the 

}  government,  and  is  distributed  among  such  a  multitude  of  individuals. 

j  The  doctrines  which  this  court  now  hold  in  relation  to  the  executive 

I  department   of    the   government    are   the    same    that   were   distinctly 

:  announced  in  the  case  of   Kendall  v.   United   States,  12  Pet.  524,  9 

I  L.  Ed.  1181.     In  opinion  the  court  say   [12  Pet.  610]  :    "We  do  not 

t  think  the  proceeding  in  this  case  interferes,  in  any  respect  whatever, 

I  with   the  rights  or  duties  of  the  executive,  or   that  it  involves  any 

I  conflict  of  powers  between  the  executive  and  judicial  departments  of 

!  the  government.     The  mandamus  does  not  seek  to  direct  or  control 

j  the  Postmaster  General  in  the  discharge  of  any  official  duty,  partaking 

i  in  any  respect  of  an  executive  character,  but  to  enforce  the  perform- 
ance of  a  mere  ministerial  act,  which  neither  he  nor  the  President 

I  had   any    authority   to    deny    or    control."     And    [12    Pet.    614]    the 

j  court  still  more  strongly  state  the  mere  ministerial  character  of  the 

(  act  required  to  be  done  in  that  case,  and  distinguish  it  from  official 


442  RKLIRF   AGAINST   ADMINISTRATIVK   ACTION.  (Part   2 

acts  of  the  liead  of  a  department,  where  judgment  and  discretion  are 
to  be  exercised.  The  court  there  say:  "He  was  simply  required  to 
give  the  crecht.  This  was  not  an  official  act  in  any  other  sense  than 
being  a  transaction  in  the  department  where  the  books  and  accounts 
were  kept,  and  was  an  official  act  in  the  same  sense  that  an  entry  in 
the  minutes  of  a  court,  pursuant  to  an  order  of  the  court,  is  an  of- 
ficial act.  There  is  no  room  for  the  exercise  of  any  discretion,  of- 
ficial or  otherwise.  All  that  is  shut  out  by  the  direct  or  positive 
command  of  the  law,  and  the  act  required  to  be  done  is,  in  every 
just  sense,  a  mere  ministerial  act." 

We  have  referred  to  these  passages  in  the  opinion  given  by  the 
court  in  the  case  of  Kendall  v.  United  States,  in  order  to  show  more 
clearly  the  distinction  taken  between  a  mere  ministerial  act,  required 
to  be  done  by  the  head  of  an  executive  department,  and  a  duty  im- 
posed upon  him  in  his  official  character  as  the  head  of  such  depart- 
ment, in  which  judgment  and  discretion  are  to  be  exercised.  There 
was  in  that  case  a  difference  of  opinion  in  the  court  in  relation  to  the 
power  of  the  circuit  court  to  issue  the  mandamus.  But  there  was  no 
difference  of  opinion  respecting  the  act  to  be  done.  The  court  were 
unanimously  of  opinion  that  in  its  character  the  act  was  merely  min- 
isterial. In  the  case  before  us  it  is  clearly  otherwise.  The  resolution 
in  favor  of  A'lrs.  Decatur  imposed  a  duty  on  the  Secretary  of  the 
Navy,  which  required  the  exercise  of  judgment  and  discretion;  and 
in  such  a  case,  the  circuit  court  had  no  right,  by  mandamus,  to  control 
his  judgment,  and  guide  him  in  the  exercise  of  a  discretion  which 
the  law  had  confided  to  him. 

We  are,  therefore,  of  opinion  that  the  circuit  court  were  not  au- 
thorized by  law  to  issue  the  mandamus,  and  committed  no  error  in 
refusing  it.  And  as  we  have  no  jurisdiction  over  the  acts  of  the 
Secretary  in  this  respect,  we  forbear  to  express  any  opinion  upon 
the  construction  of  the  resolution  in  question.  The  judgment  of 
the  circuit  court,  refusing  to  award  a  peremptory  mandamus,  must 
be  affirmed.*'* 

*'>  "The  construction  of  a  statute  is  not  a  ministerial  act;  it  is  the  exercise 
of  juclgment.  If  it  is  the  duty  of  the  defendant  to  admit  or  not  to  admit  the 
plaintiff  to  do  business  in  this  state,  according  to  the  interpretation  to  be  put 
on  the  insurance  statutes,  then  the  admitting  or  refusing  to  admit  involves 
the  exercise  of  discretion  and  judgment.  *  *  *  it  is  not  a  purely  minis- 
terial act  and  a  mandamus  ought  not  to  issue."  American  Casualty  Ins.  Co. 
V.  Fyler,  60  Conn.  448,  462,  22  Atl.  494,  25  Am.  St.  Rep.  337  (1S91). 

"Every  statute  to  some  extent  requires  construction  by  the  public  officer 
whose  duties  may  be  defined  therein.  Such  officer  must  read  the  law,  and  he 
nmst  therefore,  in  a  certain  sense,  construe  it,  in  order  to  form  a  judgment 
from  its  language  what  duty  he  is  directed  by  the  statute  to  perform.  But 
tliat  does  not  necessarily  and  in  all  cases  malve  the  duty  of  the  officer  any- 
tliing  other  than  a  purely  ministerial  one.  If  the  law  direct  him  to  perform 
an  act  in  regard  to  which  no  discretion  is  committed  to  him.  and  which,  upon 
the  facts  existing,  he  is  bound  to  perform,  then  that  act  is  ministerial,  al- 
tliough  depending  upon  a  statute  which  requires,  in  some  degree,  a  construc- 
tion of  its  language  by  the  officer.  Unless  this  be  so,  the  value  of  this  writ 
[i.  e.,  the  writ  of  mandamus]  is  very  greatly  impaired.     Every  executive  of- 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  443 

PEOPLE  ex  rel.  BAILEY  v.  BOARD  OF  SUPERVISORS  OF 
GREENE  COUNTY. 

(Supreme  Court  of  New  York,   1851.     12  Barb.  217.) 

Harris,  J.*^  '■'  *  *  The  board  of  canvassers  illegally  and  un- 
justly omitted  to  count  the  votes  of  the  Third  election  district  of  the 
town  of  Catskill.  The  relator  had  a  legal  right  to  have  these  votes 
counted.  The  board,  therefore,  omitted  to  do  an  act  which  they 
ought  to  have  done.  There  has  been  an  omission  to  perform  an  of- 
ficial duty.  For  this  omission  the  relator  ought  to  have  a  remedy ; 
and  if  no  other  remedy  exists,  and  the  parties  to  whom  the  writ  is 
directed  can  yet  perform  the  duty,  he  is  entitled  to  a  mandamus.  If, 
on  the  other  hand,  the  defendants  cannot  now  perform  that  duty, 
even  though  they  have  erred  in  omitting  to  count  the  votes  in  ques- 
tion, the  relator  must  look  for  some  other  remedy.  A  mandamus,  if 
granted,  would  be  unavailing. 

The  county  board  of  canvassers,  except  in  certain  specific  cases,  is 
composed  of  the  supervisors  of  the  several  towns  in  the  county.    The 

tioer  whose  duty  is  plainly  devolved  upon  liim  by  statute  might  refuse  to  per- 
form it,  and  when  his  refusal  is  brought  before  the  court  he  might  success- 
fully plead  that  the  performance  of  the  duty  involved  the  construction  of  a 
statute  by  him.  and  therefore  it  was  not  ministerial,  and  the  court  would  on 
that  account  be  powerless  to  give  relief.  Such  a  limitation  of  the  powers  of 
the  court,  we  think,  would  be  most  unfortunate,  as  it  would  relieve  from  ju- 
dicial supervision  all  executive  officers  in  the  performance  of  their  duties, 
whenever  they  should  plead  that  the  duty  required  of  them  arose  upon  the 
construction  of  a  statute,  no  matter  how  plain  its  language,  nor  how  plainly 
they  violated  their  duty  in  refusing  to  perform  the  act  required."  Roberts, 
Treasurer,  v.  United  States,  176  U.  S.  221,  231,  20  Sup.  Ct.  37G,  379,  44  L. 
Ed.  443  (1899). 

In  New  York,  where  the  scope  of  the  writ  of  certiorari  is  very  extensive, 
mandamus  apparently  does  not  lie  to  correct  errors  in  the  judicial  determina- 
tion by  administrative  authorities  of  questions  of  fact  or  questions  of  law. 
People  ex  rel.  Harris  v.  Commissioners  of  Land  Office,  149  N.  1".  26,  43  N. 
E.  418  (1896)  ;  People  ex  rel.  Sims  v.  Collier,  175  N.  Y.  196,  67  N.  E.  309 
(1903). 

See,  further,  Allbutt  v.  General  Council,  23  Q.  B.  D.  90  (1889),  post.  p. 
542;  United  States  ex  rel.  Dunlap  v.  Black,  128  U.  S.  40,  9  Sup.  Ct.  12,  32  L. 
Ed.  a54  (1888),  post,  p.  648;  United  States  ex  rel.  Riverside  Oil  Co.  v.  Hitch- 
cock. 190  U.  S.  316,  23  Sup.  Ct  698,  47  L.  Ed.  1074  (1903),  post,  p.  646. 

That  mandamus  will  not  lie  to  control  the  exercise  of  discretion,  especially 
in  the  matter  of  liquor  licenses,  see  Batters  v.  Dunning,  49  Conn.  479  (1882)  ; 
Ex  parte  Yeager,  11  Grat.  (Va.)  655  (18.54)  ;  Post  v.  Township  Board  of 
Sparta,  64  Mich.  597,  31  N.  W.  535  (1887)  ;  Attorney  General  v.  Guilford 
County  .Justices,  27  N.  O.  315  (1844);  Jones  v.  Commissioners  of  Moore  Co., 
106  N.  C.  436.  11  S.  E.  514  (18.90) ;  Commissioners  of  Maxton  v.  Commission- 
ers of  Robeson  County,  107  N.  C.  335,  12  S.  E.  92  (1890) ;  Harrison  v.  People, 
222  111.  150,  78  N.  E.  52  (1906)  ;  People  ex  rel.  Schwab  v.  Grant,  126  N.  Y. 
473,  27  N.  E.  964  (1891) ;  Armstrong  v.  Murphy,  65  App.  Div.  123,  72  N.  Y. 
Supp.  473  (1901);  A.  H.  Fenn,  Two  Questions  Concerning  Mandamus,  2  Yale 
Law  Journal,  219. 

See.  however.  Illinois  State  Board  of  Dental  Examiners  v.  People,  123  111. 
227,  13  N.  E.  207  (1887). 

*i  Only  a  portion  of  the  opinion  of  Harris,  J.,  is  printed. 


444  RKLIKF   AOAIXST   ADMINISTRATIVE   ACTION.  (Part    2 

alternative  mandamus  assumes  that  the  defendants,  being  such  supervis- 
ors, constitute  the  board.  This  is  not  necessarily  the  case ;  but  I  will 
consider  the  question  upon  the  assumption  that  this  is  so.  That  board 
met  on  the  Tuesday  following  the  election,  and  organized  according  to 
law.  It  then  proceeded,  though  illegally  and  improperly,  as  it  is  al- 
leged, to  estimate  the  votes  of  the  county  and  to  make  the  statements 
prescribed  by  statute.  They  also  proceeded  to  determine  who  had 
been  elected  county  officers.  This  determination,  it  may  be  assumed, 
was  erroneous.  But  it  was  made,  and  a  copy,  with  the  statement 
upon  which  it  was  made,  has  been  published.  It  has  been  filed,  and 
has  become  matter  of  record.  The  board  has  dissolved.  Were  the 
same  individuals  again  to  convene,  they  would  not  again  constitute 
the  county  board  of  canvassers.  No  statute  authorizes  such  second 
assembling,  or  prescribes  its  mode  of  organization.  If  convened  and 
organized,  it  would  have  no  legal  authority  to  review  its  former  acts, 
or  correct  its  errors.  When  the  board  deposited  with  the  clerk  the  re- 
sult of  its  canvass,  and  declared  who  were  elected  to  office,  and  pub- 
lished that  result  and  determination,  all  its  powers  were  expended. 
If  it  had  erred,  the  errors  must  be  corrected  by  some  other  tribunal. 
The  law  has  withheld  from  it  the  power  of  reviewing  its  own  de- 
terminations. 

But  suppose  the  supervisors  to  reassemble  and  assume  the  office  of 
recanvassing  the  votes  of  the  county.  They  have  already  determined 
that  Lyman  Tremain  is  elected  to  the  office  of  county  judge.  If 
they  should  obey  the  mandamus,  they  might  make  a  new  statement 
and  determination,  showing  that  the  relator  is  elected.  The  object  of 
granting  the  writ  of  mandamus  is,  as  w^e  have  seen,  to  provide  an 
efficacious  remedy  to  the  relator,  so  as  to  prevent  a  failure  of  justice. 
Of  what  advantage  would  such  a  determination,  made  under  such 
circumstances,  be  to  the  relator?  The  result  would,  undoubtedly,  be, 
as  now,  that  both  parties  would  claim  to  have  been  elected  county 
judge.  Both  would  take  the  requisite  oath  of  office,  and  assume  its 
duties,  and  the  controversy  then,  as  now,  would  only  be  determined 
by  an  action  in  the  nature  of  a  quo  warranto.  Such  a  revision  of  the 
canvass,  therefore,  if  practicable,  would  produce  no  beneficial  result, 
even  to  the  relator  himself.  Instead  of  being  an  efficacious  remedy,  the 
writ  in  its  operation  would  be  wholly  abortive.  When  it  can  be  fore- 
seen that  this  must  be  the  result,  the  writ  should  not  be  granted.  Lex 
non  cogit  ad  inutilia.  "The  court  will  refuse  the  writ,"  says  Tapping, 
"if  it  be  manifest  that  it  must  be  vain  and  fruitless,  or  cannot  have  a 
beneficial  efifect."  Tapping  on  Mandamus,  IT.  I  am  of  opinion, 
therefore,  that,  assuming  that  the  board  of  canvassers  erred  in  re- 
jecting the  votes  of  the  Third  election  district  of  the  town  of  Cat- 
skill,  it  is  now  too  late  for  the  canvassers  to  correct  that  error. 
The  matter  has  passed  beyond  their  jurisdiction  or  control.  If  the 
defendants,  moved  by  the  command  of  this  court,  or  otherwise,  should 
undertake  such  correction,  their  action  would   be   wholly  ineffectual 


Ch.  8)  ACTIOXS   FOR   SPECIFIC   RELIEF.  445 

for  the  purposes  for  which  the  relator  seeks  to  enforce  it.  Nothing 
short  of  a  quo  warranto  action  can  determine  his  right  to  the  office. 

I  will  not  say  that  a  state  of  facts  might  not  occur  which  would  call 
upon  the  court  to  interfere  by  mandamus  to  control  the  action  of  a 
board  of  canvassers,  but  this  can  only  be  done  while  such  board  is  in 
existence.  And  even  then  the  nature  of  the  duties  to  be  discharged 
by  it  is  such  that  it  can  rarely  be  either  expedient  or  practicable  thus 
to  interfere.*-  But,  when  the  board,  having  performed  the  office  for 
which  it  was  constituted,  whether  legally  or  not,  has  been  dissolved, 
it  is  incapable  of  being  reanimated.  Any  act  it  should  attempt  to  per- 
form, even  though  it  be  done  in  obedience  to  the  mandate  of  this 
court,  would  be  extraofficial  and  nugatory. 

Nor  does  the  relator  need  this  writ.  He  has  another  and  a  more 
efficacious  remedy.  I  agree  with  him  that  it  is  not  an  answer  to  the 
application  for  a  mandamus  to  show  that  some  other  remedy  exists 
against  some  other  party.  It  would  not,  of  itself,  be  enough  for  the 
defendants  to  show  that  the  relator  can  obtain  relief  by  quo  warranto 
against  the  person  whom  they  have  declared  to  be  elected.  This 
principle  only  prevails  when  such  other  remedy  is  attainable  against 
the  same  party  to  whom  it  is  sought  to  have  the  mandamus  directed. 
I  prefer  to  put  the  refusal  to  grant  the  writ  upon  the  ground  that  it 
is  inappropriate  and  ineffectual,  and  that,  by  withholding  it,  we  do 
not  leave  the  relator  without  an  appropriate  and  effectual  remedy. 

The  ancient  and  appropriate  proceeding  to  try  and  determine  the 
right  and  title  to  all  offices,  says  a  very  learned  judge,  was  under  the 
writ  of  quo  warranto ;  and  where  a  legal  question  was  involved,  this 
was  the  only  mode  of  determining  it.  By  the  Revised  Statutes,  this 
old  remedy  is  not  only  preserved,  but  rendered  more  expeditious  and 
manageable,  and  it  is  declared  to  be  especially  applicable  "when  any 
person  shall  usurp,  intrude  into,  or  unlawfully  hold  or  exercise  anv 
public  office."  2  Rev.  St.  581,  §  28.  See,  also,  Code  1851,  §  432. 
"Provision  is  made  for  the  determination  of  issues  of  law  and  of  fact. 
The  right  of  trial  by  jury,  so  vital  to  the  due  decision  of  the  latter, 
is  expressly  maintained  and  declared.  This,  then,  is  emphatically 
the  constitutional  mode  of  proceeding  for  the  trial  of  the  title  to 
offices."  *^^  People  v.  Stevens,  5  Hill,  631,  note  "a,"  per  Kent,  Chief 
Judge. 

The  motion  for  a  peremptory  mandamus  must  therefore  be  denied.** 

4  2  In  a  proper  case  the  action  of  a  canvassing  board  will  be  controlled 
by  mandamus:  People  ex  rel.  Nichols  v.  Board  of  County  Canvassers  of 
Onondaga  County,  129  N.  Y.  .395,  29  N.  D.  327.  14  L.  R.  A.  624  (1891) ;  Peo- 
ple ex  rel.  Daley  v.  Rice.  129  N.  T.  449.  29  N.  E.  35.5,  14  L.  R.  A.  G43  (1891)  ; 
People  ex  rel.  Derl)y  v.  State  Board  of  Canvassei-s,  129  N.  Y.  401,  29  N.  E. 
3.58  (1891) ;  Rosenthal  v.  State  Board  of  Canvassers,  50  Kan.  129,  32  Pac.  129, 
19  L.  R.  A.  157  (1893). 

is  In  the  case  of  a  clerk,  mandamus  is  proper,  since  quo  warranto  is  un- 
available. People  ex  rel.  Drake  v.  Sutton,  88  Ilun,  175,  34  N.  Y.  Supp.  487 
(1895). 

*4  See,  also,  State,  etc.,  v.  Lewis,  35  N.  J.  Law,  377   (1872). 


446  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Fait    2 

PEOPLE  ex  rel.  BARTLETT  et  al.  v.  DUNNE,  Mayor. 
(Supreme  Court  of  Illinois,  llKMt.    210  111.  :UG,  70  N.  E.  570.) 

]\Iotion  by  the  People,  on  the  relation  of  one  Bartlett  and  others, 
for  leave  to  file  a  petition  for  a  writ  of  mandamus  against  Edward 
F.  Dunne,  Mayor  of  Chicago.     Denied. 

Cartwrigiit,  C.  J.  Yesterday  the  relators  moved  for  leave  to  file 
a  petition  for  mandamus,  and  presented  the  petition,  with  suggestions 
in  support  of  it.  At  that  time  the  corporation  counsel  of  the  city  of 
Chicago  stated  to  the  court  that  he  had  prepared  an  argument  against 
the  motion,  which  was  presented  to  the  court,  and  since  that  time  a 
reply  to  his  argument  has  been  presented  by  the  relators.  The  ap- 
plication in  this  class  of  cases  is  ex  parte,  and  nothing  has  been  or 
will  be  considered  except  the  petition  of  the  relators,  with  the  ac- 
companying suggestions  in  support  of  the  motion. 

The  petition  sets  out  that  the  defendant,  Edward  F.  Dunne,  is 
mayor  of  the  city  of  Chicago ;  that  previous  to  the  election  he  de- 
clared that,  if  elected,  he  would  not  enforce  the  laws  of  the  state  and 
the  ordinances  of  the  city  respecting  the  keeping  open  of  tippling 
houses  on  the  Sabbath  day ;  and  that  since  his  election  he  has  neg- 
lected and  refused  to  enforce  such  laws  and  ordinances,  and  has  de- 
clared his  deliberate  intention  to  violate  his  duty  in  that  respect  and 
not  to  enforce  either  of  them  or  to  punish  violators  of  them.  At- 
tention is  called  to  the  statute  which  imposes  upon  the  mayor  the 
duty  and  obligation  to  see  that  the  laws  and  ordinances  are  faithful- 
ly executed,  and  the  obligation  assumed  by  him  as  mayor  to  do  so. 

The  prayer  of  the  petition  is  that  this  court  will  issue  the  peremp- 
tory writ  of  mandamus  to  the  defendant,  enjoining  and  commanding 
him,  without  delay,  and  by  the  use,  as  far  as  may  be  necessary  for 
the  purpose,  of  every  means,  power,  and  authority  in  that  behalf 
conferred  upon  the  mayor  of  said  city  by  the  laws  of  this  state  or 
the  ordinances  of  the  city  of  Chicago,  to  proceed,  and  thenceforth 
persistently  to  continue,  to  enforce  within  said  city  the  statute  of  this 
state  prohibiting  the  keeping  open  upon  the  first  day  of  the  week, 
called  Sunday,  of  tippling  houses  and  other  places  where  liquor  is 
sold  or  given  away,  and  to  compel  the  general  observance  of  the 
provisions  of  said  law  in  said  city  on  each  and  every  Sunday  there- 
after by  every  person  amenable  thereto,  and  to  prevent  the  viola- 
tion thereof,  and  secure  the  prosecution  of  every  person  violating  the 
said  law  in  said  city,  and  to  punish  all  violations  of  said  law  by  li- 
censed dramshop  keepers  in  said  city  by  the  revocation  of  their  li- 
censes, and  generally  and  at  all  times  to  take  care  that  said  law  is 
faithfully  executed  in  said  city. 

The  remedy  by  mandamus  is  one  which  is  allowed  to  compel  the 
performance  of  some  duty  owing  to  an  individual  or  to  the  public. 
The  duty  must  be  specific  in  its  nature,  and  of  such  character  that 


Ch.  8)  ACTIONS   FOR  SPECIFIC   RELIEF.  447 

the  court  can  prescribe  a  definite  act  or  series  of  acts  which  will  con- 
stitute a  performance  of  the  duty,  so  that  the  respondent  may  know 
what  he  is  obliged  to  do  and  may  do  the  act  required,  and  the  court 
may  know  that  the  act  has  been  performed  and  may  enforce  its  per- 
formance.    It  is  not  necessary,  in  all  cases,  that  the  performance  of 
'    the  duty  should  consist  of  a  single  act.     It  may  be  a  succession  of 
acts,  if  the  duty  is  specific  and  the  acts  are  of  such  a  nature  that  the 
court  can  supervise  the  performance  of  the  duty  and  the  execution 
of  the  mandate.     For  example,  the  court  may  require  a  railroad  com- 
;    pany  to  relay  a  portion  of  its  track  which  has  been  taken  up,  and  op- 
.    erate  it ;  to  operate  its  railway  as  a  continuous  line ;   to  deliver  freight 
j    to  a  certain  elevator;    to  run  a  daily  passenger  train  for  the  accom- 
!    modation  of  passengers  over  its  road,  in  place  of  a  mixed  stock  and 
passenger  train;    or  to  stop  all  its  passenger  trains  at  a   certain  sta- 
,    tion.     But  the  writ  has  never  been  made  use  of,  and  does  not  lie,  in 
this  state  at  least,  for  the  purpose  of  enforcing  the  performance  of 
'    duties  generally.     It  will  not  lie  where  the  court  would  have  to  con- 
!    trol  and  regulate  a  general  course  of  official  conduct  and  enforce  the 
I    performance  of  official   duties  generally.     In  such  a  case  the  court 
could  not  prescribe  the  particular  act  to  be  performed  and  enforce  its 
I    performance. 

It  is  plain  that  in  this  case,  where  the  court  is  asked  to  require  the 
i  defendant  to  adopt  a  course  of  official  action,  although  it  is  a  course 
\  required  by  the  statute  and  imposed  upon  him  by  the  law,  it  would 
1  be  necessary  for  the  court  to  supervise  generally  his  official  conduct, 
and  to  determine  in  very  numerous  instances  whether  he  had  persist- 
I  ently,  and  to  the  extent  of  his  power  and  the  force  in  his  hands,  car- 
!  ried  out  the  mandate  of  the  court  and  performed  his  official  duty.  It 
I  is  manifest  that,  where  there  are  about  7,000  saloons  in  a  city  which 
i  are  kept  open  on  the  Sabbath  day  in  violation  of  law,  as  is  alleged  in 
I  this  case,  the  court  would  not  only  have  to  enforce  a  general  course 
1  of  official  conduct  on  the  part  of  the  mayor,  but  must  also  determine 
I  in  numerous  instances  whether  ground  existed  for  the  revocation  of 
!  licenses,  whether  there  had  been  violations  of  law,  and  to  what  ex- 
j  tent  he  had  endeavored  to  perform  his  duty  with  the  force  and  facil- 
;  ities  at  his  command  for  doing  it.  The  writ  will  not  lie  for  any  such 
i   purpose. 

•  For  the  court  to  assume  the  management  of  municipal  affairs  in  the 
!  city  of  Chicago  would  be  to  depart  from  its  proper  sphere  and  as- 
;  sume  governmental  functions,  which  are  outside  of  the  jurisdiction 
of  the  courts  and  not  within  the  remedy  by  writ  of  mandamus.  Leave 
j  to  file  the  petition  is  denied. 
Motion  denied.*^ 

*5  A  writ  of  mandamus  was  subsequently  refused  to  enforce  the  law  against 
i    one  owner  of  two  saloons.     People  ex  rel.  Bartlett  v.  Busse,  238  111.  593,  87 
I    N.  E.  840  (1909). 
1        See,  also,  State  ex  rel.  AVear  v.  Francis,  95  Mo.  44,  8  S.  W.  1  (1888) ;    State 


448  RELIEF   AGAINST   ADMINISTRATIVE   ACTION,  (Part   2 


SECTION   54.— SAME— CONTROL   OF   FAIRNESS    OF  DIS- 
CRETION 


UNITED  STAIES  ex  rel.  ROOP  v.  DOUGLASS. 
(Supreme  Court  of  District  of  Columbia,   1890.     19  D.  C.  99.) 

James^  J.*^  "^  *  *  There  is  nothing  alarming  in  the  term  dis- 
cretionary power.  It  has  a  legal  meaning,  with  safe  limitations. 
The  intendment  of  a  law  which  grants  it,  whether  expressly  or  by  im- 
plication, is  that  the  discretionary  decision  shall  be  the  outcome  of 
examination  and  consideration ;  in  other  words,  that  it  shall  con- 
stitute a  discharge  of  official  duty,  and  not  a  mere  expression  of 
personal  will.  An  arbitrary  disapproval  of  a  license,  for  example,  de- 
termined upon  without  an  examination  of  relevant  facts,  and  ex- 
pressing nothing  but  the  mood  of  the  officer,  would  not  be,  in  con- 
templation of  law,  an  exercise  of  the  power  granted.  It  would  con- 
stitute, on  the  contrary,  a  neglect  and  refusal  to  perform  his  official 
functions,  and  would  expose  him  to  the  interference  of  this  court 
by  the  writ  of  mandamus.  To  what  effect,  however,  would  be  a  dis- 
tinct question. 

If,  then,  the  respondents  had  discretionary  power,  what  averments 
must  their  return  contain,  in  justification  of  their  refusal  to  issue  a 
license?  We  have  said  that  the  rule  of  certainty  applies  only  to  the 
pleading  of  those  facts  which  constitute  the  tests  or  conditions  of 
their  power,  and  which  show  that  it  has  been  lawfully  exercised. 
So  is  it  necessary,  then,  to  state  with  certainty  anything  more  than 
the  fact  that  they  have  made  an  examination  in  obedience  to  the  im- 
plied requirement  of  the  law,  and  the  further  fact  that,  upon  such 
examination,  they  believe  that  a  license  should  not  be  granted  to  the 
petitioners,  either  because  they  are  not  fit  persons,  or  because  a  bar- 
room should  not,  as  a  matter  of  public  interest,  be  licensed  in  conjunc- 
tion with  the  Globe  Theater?  Is  it  necessary  that  they  should  also 
state  with  certainty,  so  as  to  establish  them  as  facts,  or  state  at  all, 
the  matters  of  fact  on  which  they  based  their  decision?     *     *     * 

The  special  reasons  for  respondents'  decision — that  is  to  say,  the 
alleged  fact  that  robberies  were  committed  at  the  Globe  Theater,  and 

ex  rel.  Ilawes  v.  Brewer,  39  Wash.  G."),  80  Pac.  1001,  109  Am.  St.  Rep.  858 
(1905). 

As  to  mandamus  against  the  Governor,  see  3  Michigan  Law  Review,  p.  631. 

Pasmore  v.  Oswaldthistle  Urban  Council.  [1898]  A.  C.  387  (House  of  Lords). 
The_  dut}^  of  a  local  authority  under  section  15  of  the  Public  Health  Act, 
1875,  to  make  such  sewers  as  may  be  necessary  for  effectually  draining 
their  district,  cannot  be  enforced  by  mandannis  brought  by  a  private  person. 
The  only  remedy  for  the  neglect  of  the  duty  is  that  given  by  section  259  of 
the  act,  a  complaint  to  the  local  government  board. 

4  0  Only  a  portion  of  the  opinion  of  James,  J.,  is  printed. 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  449 

that  it  was  the  resort  of  thieves  and  disorderly  persons — were  stated 
unnecessarily,  and  it  is  immaterial  whether  they  are  pleaded  with  that 
de;2:ree  of  certainty  which  will  establish  them  as  facts.     *     *     *  *^ 


DEVIN  V.  BELT. 

(Court  of  Appeals  of  Maryland,  1889.     70  Md.  352.  17  Atl.  375.) 

Yellott,  J.     The  Act  of  1884,  c.  283,  §  5,  local  in  its  application 
and  designated  as   the  high  license  law  of  Prince  George's  county, 
provides  that,  in  addition  to  the  usual  license  required  by  the  state, 
I   all  applicants  for  liquor  licenses  shall,  before  obtaining  said  licenses, 
I    pay  to  the  clerk  of  the  circuit  court  the  sum  of  one  hundred  dollars 
i    for  the  use  of  the  public  roads  of   said   county.     The  act  provides 
I   "that  no  spirituous   or  fermented  liquors,  or  alcoholic  bitters,   shall 
!   be  sold  in  any  election  district  of  said  county  except  as  provided  for 
I  by  section  five,"  and  it  is  further  enacted  "that  each  and  every  ap- 
I  plicant,  person  or  persons,  house,  corporation,   company  or  associa- 
!   tion  shall  be  recommended  to  the  said  clerk  by  five  respectable  free- 
holders of  his  or  their  immediate  vicinity,  as  a  fit  person  to  traffic  in 
I  the  article." 

I  Having  conformed  with  the  provisions  of  this  act,  the  appellant 
1  obtained  licenses  to  sell  liquor  at  his  storehouse  in  the  town  of  Lau- 
rel,  in  Laurel  district  of  Prince  George's  county,  for  the  period  of 
I  one  year.  The  licenses  were  issued  on  the  1st  of  November,  1887. 
!  At  its  session  of  1888  the  Legislature  of  Maryland  enacted  a  law 
)  submitting  to  the  voters  of  Laurel  district  the  question  in  relation  to 
issuing  licenses  to  sell  liquor  in  that  district  after  the  1st  day  of  Alay 

4  7  "Here  the  court  of  mayor  and  aldermen  have  not  determined  without  ev- 
idence, for  they  have  heard  the  parties  and  their  witnesses,  and  have  adjudi- 
cated that,  in  their  discretion  and  sound  consciences,  Mr.  Scales  is  not  a  fit 
and  proper  person  to  be  alderman.  They  have  acted,  therefore,  upon  a  rea- 
sonable and  legal  custom,  ajid,  having  so  acted,  it  appears  to  me  that  this 
court  has  not  jurisdiction  to  disturb  that  conclusion  to  which  they  have  come 
according  to  their  discretion  and  sound  consciences.     But  then  it  is  said  that 

I  they  ought  to  have  set  forth  the  grounds  upon  which  they  arrived  at  that 
conclusion.  I  thinlj  that  this  is  one  of  those  cases  in  which  it  is  probably 
touch  better  that  the  grounds  should  not  be  disclosed,  because  the  circuni- 

I  stances  which  regulate  the  exercise  of  a  discretion  like  this  may  be  such  that 
it  would  be  extremely  inconvenient  for  a  traverse  to  be  taken.  It  is  unneces- 
sary, however,  to  proceed  upon  that  reasoning,  because  this  return  is  suffi- 
ciently justified  by  the  cases  cited  [Rex  v.  Mayor  of  Stratford-on-Avon,  1 
Lev.  291  (1670);  Rex.  v.  Burgesses  of  Andover,  1  Ld.  Raym.  710  (1701); 
Rex  v.  Bishop  of  London.  13  East,  419  (1811);  Queen  v.  Burgesses  of  Ips- 
wich, 2  Ld.  Raym.  1240  (1705)],  and  more  might  have  been  adduced,  which 
show  that,  where  a  corporate  office  is  held  durante  bene  placito,  it  is  a  suffi- 
cient return  to  a  mandamus  that  the  corporation  have  determined  their  pleas- 
ure ;  but  if  the  corporation  are  so  candid  as  to  state  their  reasons,  and  allege 
bad  ones,  this  court  will  in  such  cases  interfere."  Rex  v.  Mayor  and  Alder- 
men of  London,  3  Barn.  &  Ad.  255,  273,  274. 
Fk.Adm.Law— 29 


450  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

in  said  year,  and  the  majority  of  votes  determined  the  question  in 
favor  of  prohibiting-  the  issuing  of  licenses  in  said  district.     On  the   , 
1st  day  of  June,  1888,  the  appellant  applied  to  the  clerk  for  trans-  | 
fers  of  his  licenses  to  sell  liquor,  from  Laurel  to  an  adjoining  dis-  i 
trict,  claiming  to  be  recommended  by  five  respectable  freeholders,  liv- 
ing in   the   immediate  vicinity   of   his   new   place  of   business.     The  j 
transfers  were  refused  by  the  clerk,  who  did  not  think  that  the  ap-   '; 
pellant  was  recommended  by  five  respectable  freeholders  living  in  his   j 
immediate  vicinity.     The  record  contains  the  recommendation  of  five   , 
persons  who  were  unable  to  write,  and  therefore  made  their  marks.   | 
The  appellant  then  applied  for  a  new  state  license.     The  clerk  re- 
fused to  grant  a  new  license,  because  the  appellant  would  not  pay 
the  $100  required  by  law.     He  also  assigned  this  as  one  of  his  rea- 
sons for  refusing  to  make  the  transfers.  \ 

Upon  this  refusal  the  appellant  applied  for  a  writ  of  mandamus  i 
to  compel  the  clerk  to  issue  the  new  licenses  or  transfer  the  old  li-  \ 
censes.  The  clerk  filed  his  answer,  the  appellant  demurred,  and  the  1 
demurrer  was  overruled.  The  appellant  then  filed  a  replication,  to  j 
which  there  was  a  demurrer.  This  demurrer  was  sustained,  and  the  j 
court  passed  an  order  dismissing  the  appellant's  petition.  From  this  i 
order  an  appeal  has  been  taken.  l| 

It  does  not  seem  to  be  necessary  to  consider  and  determine  many    I 
of  the  questions  presented  by  the  argument  of  counsel,  for  it  is  an    ! 
established  principle  that  a  court  will  not  issue  a  mandamus  to  com-    t 
pel  a  public  officer  to  perform  any  act  when  its  performance  has  been    | 
left  by  the  lawmaking  department  of  the  government  to  the  discre-    ; 
tion  and  judgment  of  the  officer.     In  State  ex  rel.  O'Neill  v.  Reg-    \ 
ister  et  al.,  59  Md.   283,  this   court  decided  that  when  an  act  rests    i 
by  statute  in  the  discretion  of  any  person,  or  depends  upon  the  exer-    j 
cise   of  personal   judgment,   mandamus    will    not   lie.     This   doctrine 
has  been   recognized  and  seems  to  prevail  in  all  the  states  of  this 
country.     "As  to  all  acts  or  duties  necessarily  calling  for  the  exer- 
cise of  judgment  or  discretion  on  the  part  of  the  officer  or  body  at 
whose  hands  the  performance  is   required,  mandamus  will  not  lie." 
High  on  Extr.  Rem.  §  24 ;    State  ex  rel.  Exchange  Bank  v.  Board  of 
Liquidators,  29  La.  Ann.  264;    Post  v.  Township  of  Sparta,  64  Mich. 
597,  31  N.  W.  535;    State  v.  County  Com'rs,  21  Fla.  1;    Dalton  v. 
State,  43  Ohio  St.  652,  3  N.  E.  685. 

The  clerk  of  Prince  George's  county,  in  the  performance  of  a  duty 
imposed  on  him  by  law,  had  to  determine,  before  he  issued  a  li- 
cense, that  the  appellant  was  recommended  by  five  persons;  that 
those  five  persons  lived  in  the  immediate  vicinity  of  his  place  of 
business ;  that  they  were  freeholders ;  and  that,  although  so  ignorant 
and  illiterate  that  they  could  not  write  their  names,  they  were  re- 
spectable freeholders.  It  is  apparent  that  this  question  of  respect- 
ability sometimes  presents  many  difficulties.     It  was  a  duty  incum- 


Ch.  8)  ACTIONS   FOR   SPECIFIC   llELIEP.  451 

bent  on  the  clerk  to  solve  this  question,  and  he  might  not  be  able  to 
arrive  at  a  solution  until  after  patient  inquiry  and  the  exercise  of 
sound  judgment  and  discretion,  and  a  mandamus  will  not  lie. 

The  appellant  contends  that,  as  he  averred  in  his  replication  that 
he  was  recommended  by  five  respectable  freeholders  in  his  immediate 
vicinity,  the  demurrer  to  the  replication  admits  the  truth  of  the  aver- 
ment. This  argument  is  not  supported  by  established  principles. 
In  Brooke  v.  Widdicombe,  39  Md.  400,  the  late  Chief  Judge  Bartol, 
in  delivering  the  opinion  of  this  court,  said:  "The  answer  avers  that 
the  petitioner  was  not  legally  elected  to  the  office;  but  that  the  re- 
spondent actually  received  a  plurality  of  the  votes  cast.  In  the  ar- 
gument of  the  case  it  was  earnesdy  insisted  on  the  part  of  the  ap- 
pellant that  the  effect  of  the  demurrer  was  to  admit  the  facts  thus 
stated  in  the  answer,  and  consequently  that  the  appellee  is  in  the 
attitude  of  claiming  an  office  to  which  he  admits  by  his  pleading  he 
was  not  legally  elected.  Such  is  not  the  legal  effect  of  the  demurrer. 
It  is  well  settled  that  a  demurrer  admits  no  other  facts  than  those 
which  are  well  pleaded.  If  facts  are  pleaded  which  are  insufficient 
in  substance,  or  immaterial,  they  are  not  admitted  by  the  demurrer  to 
be  true ;  its  office  is  to  assert  a  legal  proposition  that  the  pleading  de- 
murred to  is  insufficient  in  law  to  maintain  the  case  shown  by  the 
adverse  party." 

From  what  has  been  said  it  follows  that  the  order  appealed  from 
must  be  affirmed.'** 


AMPERSE  V.  CITY  OF  KALAMAZOO. 

'    1  (Supreme  Court  of  Michigan,  1S8G.     59  IMicli.  78,  26  N.  W.  222,  409.) 

i(    1 

3;    ;      Relator  applied  for  an  order  to  show  cause  why  a  mandamus  should 
:    I  not  issue  requiring  the  common  council  of  the  city  of  Kalamazoo  to 

act  upon  the  approval  of  her  bond  as  a  liquor  dealer  in  said  city, 

which  was  granted,  to   which   respondent  made   answer.     The  facts 

are  stated  in  the  opinions. 
Morse,  J.*^     *     *     *     Two  reasons  are  urged  why  the  writ  should 

not  issue   in   this   case :     First,   because    the   relator   is   a   married 

;  woman,  living  with  her  husband,  and  is  therefore  legally  disqualified 

15    j. from  lawfully   engaging   in  the   business   of   selling  liquor;    second, 

[.    I  that  the  common  council  have  a  right  to  reject  a  liquor  bond,  and 

ithey  are  not  required  to  give  any  reason  for  their  action.     *     *     * 
The  duty  of  this  board,  under  the  statute,  is  a  simple  one.     They 

lare  concerned,  under  the  law,  solely  with  these  questions :   Is  the  bond 


48  See,  also.  Post  v.  Townsliip  Board  of  Sparta,  G4  Mich.  597,  31  N.  W.  535 
(1887). 
*9  Only  a  portion  of  the  opinion  of  Morse,  J.,  is  printed. 


452  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    3 

proper  in  form  and  the  penalty  named  therein  sufficient?  Are  the 
bondsmen  residents  of  the  municipality  and  financially  responsible 
for  their  undertaking-?  If  they  are  not  satisfied  as  to  any  of  these 
matters,  it  is  their  duty  to  reject  the  bond,  and  to  acquaint  the  peti- 
tioner with  the  ground  upon  which  they  reject  it,  so  the  bond  may 
be  remedied,  if  possible.  If  these  questions  are  found  in  the  affirma- 
tive, it  is  the  duty  of  the  board  to  approve  it.  They  have  no  power 
to  arbitrarily  reject  a  bond  without  having  any  valid  reason,  or 
without  assigning  any  good  reason  therefor.  And  we  think  the  rea- 
son for  rejecting  a  bond  should  appear  of  record.  If  not,  then  we 
shall  have  a  common  council  rejecting  a  bond,  each  member  of  the 
body  locking  up  in  his  own  breast  the  reason  therefor,  and  when 
called  upon  by  a  court  to  show  the  ground  of  their  action,  at  liberty 
to  assign  any  cause  it  may  seem  best,  under  the  circumstances, 
whether  it  be  the  real  cause  at  the  time  of  their  action  or  not.  A 
person  engaging  in  the  sale  of  liquors  is  entitled  to  the  same  equal 
rights,  under  the  law,  as  persons  filing  bonds  under  other  circum- 
stances, no  matter  what  may  be  the  opinion  of  individual  members 
of  the  board,  whose  duty  it  is  to  approve  the  bond,  as  to  the  policy 
of  the  law  or  the  character  of  the  business;  and  no  captious  or  ar- 
bitrary actions  in  depriving  him  of  his  rights  can  be  tolerated  by  the 
courts. 

It  was  held  by  this  court,  in  Parker  v.  Portland,  54  Mich.  308,  20 
N.  W.  55,  that  when  the  board  have  exercised  their  judgment  and 
discretion  in  good  faith,  and  passed  upon  the  bond,  mandamus  would 
not  lie  to  control  their  decision  or  action,  if  there  was  no  abuse  of 
their  discretion;  but  there  is  no  authority  in  that  case  to  sustain  the 
arbitrary  action  of  this  board,  who  acted  without  any  legal  judg- 
ment or  discretion,  but,  in  the  language  of  one  of  the  members,  took 
their  chances  of  disobeying  the  plain  mandate  of  the  statute,  and 
who,  when  called  upon  to  explain  or  justify  their  action,  return  to 
this  court,  in  substance :  "We  did  this  because  we  had  the  right 
and  power  to  do  it,  and  it  is  no  one's  business  what  our  reasons  were 
for  rejecting  this  bond."  It  was  expressly  held  in  Parker  v.  Port- 
land that,  when  the  rejection  of  a  liquor  bond  "was  the  result  of 
prejudice  and  caprice,"  it  would  be  the  duty  of  this  court  to  grant 
relief.     Such  is  plainly  the  case  before  us.     *     *     * 

The  respondents  in  this  case  have  seen  fit  to  rest  their  cause  upon 
the  broad  ground  that  their  action  is  above  and  beyond  the  criticism 
of  any  other  tribunal.  Their  answer  assumes  that  they  are  the  sole 
arbiters  of  the  relator's  right  to  engage  in  the  business  of  selling 
liquor.  Whether  they  have  any  good  reason  for  their  action  for 
some  cause  they  decline  to  inform  us.  In  such  case  we  can  only  as- 
sume that  they  have  acted  arbitrarily  and  without  reason.  To  allow 
such  action  would  be  in  plain  violation  of  the  statute,  and  a  manifest 


Ch.  8)  ACTIONS  FOR  SPECIFIC   RELIEF.  453 

The  writ  of  mandamus  must  issue  in  this  case  to  respondents  to 
approve  forthwith  the  bond  presented  by  relator,  with  costs  in  her 
favor.  ^° 


STATE  ex  rel.  COFFEY  v.  CHITTENDEN. 

(Supreme  Court  of  Wisconsin,  1902.  "  112  Wis.  569,  88  N.  W.  5S7.) 

Marshall,  J.^^  It  js  elementary  that  in  mandamus  proceedings 
I  to  coerce  a  judicial  officer  or  any  person  or  board  in  the  exercise  of 
I  judicial  or  quasi  judicial  power,  the  sole  legitimate  purpose  thereof 
I  is  to  set  such  person  or  board  in  motion ;  to  command  him  or  it  to 
'  act,  not  how  to  act,  to  exercise  the  judicial  power  vested  in  him  or  it ; 
[  not  to  control  as  to  the  conclusion  to  be  reached.  State  v.  Kellogg, 
95  Wis.  672,  TO  N.  W.  300;  State  v.  Johnson,  103  Wis.  591,  623, 
I  79  N.  W.  1081,  51  L.  R.  A.  33  ;  State  v.  Teal,  72  Minn.  37,  74  N. 
i  W.  1024;  Merrill,  Mand.  40.  Where  there  is  no  reasonable  ground 
I  to  justify  a  decision  by  such  officer  or  board  other  than  one  way, 
I  and  there  is  a  failure  to  act  accordingly,  the  function  of  a  mandamus 
I  proceeding  is  broad  enough  to  remedy  the  mischief  by  compelling 
i  the  making  of  such  decision,  in  perfect  harmony  with  the  rule  that 
1  the  office  thereof  is  not  to  control  discretionary  authority,  but  to  com- 
i  pel  the  exercise  thereof.  State  v.  Johnson,  supra.  That  is  to  say, 
I  if  the  law  imposes  the  duty  upon  a  judicial  or  quasi  judicial  body  to 
i  do  a  particular  thing  upon  determining  that  certain  facts  exist,  and 
\  reasonable  inquiry  be  made  by  it  in  respect  to  such  facts,  and  from 
I  the  information  thus  obtained  there  is  no  reasonable  ground  for  any 
I  conclusion  other  than  that  the  conditions  precedent  to  the  performance 
i  of  such  duty  exist,  and  a  decision  is  made  to  the  contrary  or  perform- 
j  ance  thereof  is  refused,  such  conduct  is  not  the  exercise  of  discre- 
I  tionary  power,  but  a  refusal  to  exercise  it — a  refusal  or  neglect  to 
I  perform  a  plain  duty  imposed  by  law;  and,  there  being  no  adequate 
i  legal  remedy,  the  way  is  open  for  the  extraordinary  jurisdiction  of 
}  the  court  to  award  its  writ  of  mandamus.  It  is  plain  that,  in  such  a 
1  situation,  the  court  does  not  deal  with  disputed  facts.  It  acts  upon 
j  the  theory  that  the  person  or  body  in  duty  bound  to  find  the  facts  in 
I  accordance  with  the  evidence,  in  refusing  to  do  so,  goes  beyond  or 
I  refuses  to  exercise  his  or  its  jurisdiction,  and  is,  on  that  ground 
1'  alone,  a  subject  for  coercion  by  mandamus.  State  v.  Johnson,  su- 
'  pra.     *     *     *  ^^ 

50  Accord:    State  ex  rel.  Adamson  v.  La  Fayette  Co.,  41  Mo.  221   (18G7). 
See,  also.  Ex  parte  Candee,  48  Ala.  386  (1872),  disapproved  in  Ex  parte 

Harris,  52  Ala.  87,  93,  23  Am.  Rep.  5-59   (1875). 

51  Only  a  portion  of  the  opinion  of  Marshall,  J.,  is  printed. 
6  2  See  a  note  in  6  Mich.  Law  Review,  p.  242. 


454  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  CPart   2 


SECTION    55.— MANDAMUS    IN    THE    COURTS    OF    THE 
UNITED   STATES 


KENDALL  v.  UNITED  STATES  ex  rel.  STOKES. 
(Supreme  Court  of  Uuited  States,  1S38.     12  Pet.  524,  0  L.  Ed.  1181.) 

Thompson,  J.^^  *  *  *  The  next  inquiry  is,  whether  the  court 
below  °*  had  jurisdiction  of  the  case,  and  power  to  issue  the  mandamus? 
This  objection  rests  upon  the  decision  of  this  court,  in  the  cases  of 
Mclntire  v.  Wood,  7  Cranch,  504,  3  L.  Ed.  420,  and  McChmg  v. 
SilHman,  6  Wheat.  598,  5  L.  Ed.  340.  It  is  admitted  that  those 
cases  have  decided  that  the  Circuit  Courts  of  the  United  States,  in 
the  several  states,  have  not  authority  to  issue  a  mandamus  against 
an  officer  of  the  United  States.     *     '^'     * 

The  result  of  these  cases,  then,  clearly  is  that  the  authority  to  is- 
sue the  writ  of  mandamus  to  an  officer  of  the  United  States,  com- 
manding him  to  perform  a  specific  act  required  by  a  law  of  the  United 
States,  is  within  the  scope  of  the  judicial  powers  of  the  United  States 
under  the  Constitution,  but  that  the  whole  of  that  power  has  not  been 
communicated  by  law  to  the  Circuit  Courts,  or,  in  other  words,  that 
it  was  then  a  dormant  power,  not  yet  called  into  action,  and  vested  in 
those  courts,  and  that  there  is  nothing  growing  out  of  the  official 
character  of  the  party  that  will  exempt  him  from  this  writ,  if  the  act 
to  be  performed  is  purely  ministerial. 

It  must  be  admitted,  under  the  doctrine  of  this  court  in  the  cases 
referred  to,  that  unless  the  circuit  court  of  this  District  is  vested  with 
broader  powers  and  jurisdiction  in  this  respect  than  is  vested  in  the 
Circuit  Courts  of  the  United  States  in  the  several  states,  then  the  man- 
damus in  the  present  case  was  issued  without  authority.  But  in 
considering  this  question  it  must  be  borne  in  mind  that  the  only 
ground  on  which  the  court  placed  its  decision  was  that  the  consti- 
tutional judicial  powers  on  this  subject  had  not  been  imparted  to 
those  courts.     *     *     * 

But  let  us  examine  the  act  of  Congress  of  the  27th  of  February, 
1801,  concerning  the  District  of  Columbia,  and  by  which  the  circuit 
court  is  organized,  and  its  powers  and  jurisdiction  pointed  out.  And 
it  is  proper,  preliminarily,  to  remark  that  under  the  Constitution  of 
the  United  States,  and  the  cessions  made  by  the  states  of  Virginia 
and  Maryland,  the  exercise  of  exclusive  legislation,  in  all  cases  what- 
soever, is  given  to  Congress.     And  it  is  a  sound  principle  that,  in 

5  3  For  first  part  of  opinion,  see  ante,  p.  434. 

Only  portions  of  the  opinions  of  Thompson  and  Catron,  JJ.,  ai*e  here  printed. 

6  4  The  circuit  court  of  the  District  of  Columbia. 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  455 

every  well-organized  government,  the  judicial  power  should  be  co- 
extensive with  the  legislative,  so  far,  at  least,  as  private  rights  are  to 
be  enforced  by  judicial  proceedings.  There  is,  in  this  District,  no 
division  of  powers  between  the  general  and  state  governments. 
Congress  has  the  entire  control  over  the  District,  for  every  purpose 
of  government;  and  it  is  reasonable  to  suppose  that,  in  organizing  a 
judicial  department  here,  all  judicial  power  necessary  for  the  pur- 
poses of  government  would  be  vested  in  the  courts  of  justice.  The 
circuit  court  here  is  the  highest  court  of  original  jurisdiction;  and 
if  the  power  to  issue  a  mandamus  in  a  case  like  the  present  exists  in 
any  court,  it  iis  vested  in  that  court. 

Keeping  this  consideration  in  view,  let  us  look  at  the  act  of  Con- 
gress. The  first  section  declares  that  the  laws  of  the  state  of  Mary- 
land, as  they  now  exist,  shall  be  and  continue  in  force  in  that  part  of 
the  District  which  was  ceded  by  that  state  to  the  United  States,  which 
is  the  part  lying  on  this  side  the  Potomac,  where  the  court  was  sitting 
when  the  mandamus  was  issued.  It  was  admitted  on  the  argument 
that  at  the  date  of  this  act  the  common  law  of  England  was  in  force 
in  Maryland,  and,  of  course,  it  remained  and  continued  in  force  in  this 
part  of  the  District;  and  that  the  power  to  issue  a  mandamus  in  a 
proper  case  is  a  branch  of  the  common  law  cannot  be  doubted,  and 
has  been  fully  recognized  as  in  practical  operation  in  that  state,  in 
the  case  of  Runkel  v.  Winemiller,  4  Har.  &  McH.  448,  1  Am.  Dec. 
411.     =^     *     * 

There  can  be  no  doubt  but  that,  in  the  state  of  Maryland,  a  writ 
of  mandamus  might  be  issued  to  an  executive  ofiicer,  commanding 
him  to  perform  a  ministerial  act  required  of  him  by  law;  and  if  it 
would  lie  in  that  state,  there  can  be  no  good  reason  why  it  should 
not  lie  in  this  district,  in  analogous  cases.     ^     -^     -^ 

Thus  far  the  power  of  the  circuit  court  to  issue  the  writ  of  manda- 
mus has  been  considered  as  derived  under  the  first  section  of  the  act 
of  27th  February,  1801.  But  the  third  and  fifth  sections  are  to  be 
taken  into  consideration  in  deciding  this  question.  The  third  sec- 
tion, so  far  as  it  relates  to  the  present  inquiry,  declares  "that  there 
shall  be  a  court  in  this  dictrict,  which  shall  be  called  the  circuit 
court  of  the  District  of  Columbia ;  and  the  said  court,  and  the 
judges  thereof,  shall  have  all  the  powers  by  law  vested  in  the  Cir- 
cuit Courts  and  the  judges  of  the  Circuit  Courts  of  ihe  United 
States."  And  the  fifth  section  declares  "that  the  said  court  shall 
have  cognizance  of  all  cases,  in  law  and  equity,  between  parties, 
both  or  either  of  which  shall  be  resident  or  be  found  within  the  Dis- 
trict." ^'  *  *  This,  of  course,  means  cases  of  judicial  cogni- 
zance. That  proceedings  on  an  application  to  a  court  of  justice  for 
a  mandamus  are  judicial  proceedings  cannot  admit  of  a  doubt; 
and  that  this  is  a  case  in  law  is  equally  clear.  It  is  the  prosecution 
of  a  suit  to  enforce  a  right  secured  by  a  special  act  of  Congress,  re- 
quiring of  the  Postmaster  General  the  performance  of  a  precise,  def- 


456  RELIEF  AGAINST   ADMINISTRATIVE   ACTION.  (Part   3 

inite  and  specific  act,  plainly  enjoined  by  the  law.  It  cannot  be  denied 
but  that  Congress  had  the  power  to  command  that  act  to  be  done ;  and 
the  power  to  enforce  the  performance  of  the  act  must  rest  somewhere, 
or  it  will  present  a  case,  which  has  often  been  said  to  involve  a  mon- 
strous absurdity  in  a  well-organized  government,  that  there  should 
be  no  remedy,  although  a  clear  and  undeniable  right  should  be  shown 
to  exist.  And  if  the  remedy  cannot  be  applied  by  the  circuit  court  of 
this  District,  it  exists  nowhere.  But  by  the  express  terms  of  this 
act  the  jurisdiction  of  this  circuit  court  extends  to  all  cases  in  law, 
etc.  No  more  general  language  could  have  been  used.  An  attempt 
at  specification  would  have  weakened  the  force  and  extent  of  the 
general  words — all  cases.  Here,  then,  is  the  delegation  to  this  circuit 
court  of  the  whole  judicial  power  in  this  District,  and  in  the  very 
language  of  the  Constitution,  which  declares  that  the  judicial  power 
shall  extend  to  all  cases  in  law  and  equity,  arising  under  the  laws  of 
the  United  States,  etc.,  and  supplies  what  was  said  by  this  court  in 
the  cases  of  Mclntire  v.  Wood  and  McClung  v.  Silliman,  to  be 
wanting,  viz.:  That  the  whole  judicial  power  had  not  been  delegated 
to  the  Circuit  Courts  in  the  states,  and  which  is  expressed  in  the 
strong  language  of  the  court,  that  the  idea  never  presented  itself  to 
any  one  that  it  was  not  within  the  scope  of  the  judicial  powers  of  the 
United  States,  although  not  vested  by  law  in  the  courts  of  the  general 
government.     *     *     '■' 

The  judgment  of  the  court  below  is  accordingly  afifirmed. 

Catron,  Justice  (dissenting),  *  *  *  Qn  the  merits,  I  think 
the  Senate  of  the  United  States,  and  the  Solicitor  of  the  Treasury, 
construed  the  special  act  of  Congress  correctly,  and  that  the  Solic- 
itor's award  is  a  final  adjudication,  and  conclusive  of  the  rights  of  the 
relators. 

But  the  question  whether  the  circuit  court  of  this  District  had 
power  to  compel  the  Postmaster  General,  by  mandamus,  to  enter  a 
credit  for  the  amount  awarded,  lies  at  the  foundation  of  our  institu- 
tions. A  question  more  grave  or  important  rarely  arises.  Coercion, 
by  the  writ  of  mandamus,  of  the  officers  and  agents  of  a  government, 
is  one  of  the  highest  exertions  of  sovereignty  known  to  the  British 
constitution  and  common  law.  It  is  truly  declared  to  be  one  of  the 
flowers  of  the  King's  Bench  (3  Bl.  Com.  110,  note),  and  in  England 
can  only  be  enforced  by  that  court,  where  the  king  formerly  sat  in 
person,  and  is  now  deemed  to  be  potentially  present.  It  is  his  com- 
mand, in  his  own  name,  directed  to  a  court,  person  or  corporation, 
to  do  a  particular  thing  therein  specified,  which  appertains  to  their 
office  or  duty,  as  a  means  of  compelling  its  performance.  3  Bl.  Com. 
c.  7.  The  proceeding  there,  as  here,  is  in  the  name  of  the  government, 
and  not  that  of  the  relators;  it  stands  on  the  foot  of  contempt,  and 
is  intended  to  reform  official  delinquency. 

By  the  act  of  independence,  this  prerogative  and  portion  of  sov- 
ereignty, unimpaired,  devolved  on  the  different  states  of  this  Union; 


Ch.  8)  ACTIONS   FOR  SPECIFIC   RELIEF.  457 

and  by  the  Constitution  of  the  United  States,  such  portion  of  it 
as  was  necessary  to  coerce  the  courts,  officers  and  agents  of  the 
general  government  was  withdrawn  from  the  states,  and  conferred  on 
the  federal  sovereignty.  Here  the  power  lay  dormant,  until  Congress 
should  act.  On  the  Legislature  was  imposed  the  duty  to  give  it  effect ; 
it  was  wide  as  the  land,  and  extended  to  every  portion  of  it;  and 
by  the  judiciary  act  of  1789  (section  13)  Congress  attempted  to  in- 
yest  the  Supreme  Court  of  the  United  States  with  the  power  to  issue 
writs  of  mandamus  to  persons  holding  office  under  the  authority  of 
the  United  States.  But  the  Constitution  having  restricted  this  court 
to  the  exercise  of  certain  original  powers,  and  this  not  being  amongst 
them,  it  was  holden,  in  Marbury  v.  Madison,  1  Cranch,  137,  2  L. 
Ed.  60,  so  much  of  the  act  was  void.  The  decision  was  made  in 
1803 ;  up  to  that  time,  Congress  and  the  country  did  not  question 
that  a  law  existed,  proper  and  necessary  to  give  effect  to  the  prerog- 
ative, through  the  instrumentality  of  this  court,  and  that  it  was 
properly  vested  in  the  highest  tribunal  in  the  land,  exercising  a 
jurisdiction  coextensive  with  our  whole  territory.  So  the  matter 
stood,  when  the  act  of  the  27th  February,  1801,  was  passed,  organiz- 
ing the  circuit  court  for  the  District  of  Columbia.  And  the  ques- 
tion is,  did  Congress,  by  implication,  confer,  or  intend  to  confer, 
this  high  prerogative,  within  the  ten  miles  square,  on  the  circuit 
court?  That  concurrent  power  with  the  Supreme  Court  was  intended 
to  be  given  it  is  difficult  to  believe.     *     *     * 

It  is  admitted,  and  was  so  decided  in  Mclntire  v.  Wood,  that  none 
other  of  the  Circuit  Courts  of  the  United  States,  holden  by  the  judges 
of  the  Supreme  Court,  have  the  power  claimed  for  the  court  in  this 
District,  and  that  throughout  the  twenty-six  states  of  the  Union  this 
high  prerogative  writ  cannot  be  exerted,  because  Congress,  since  the 
decision  in  1803,  in  the  case  of  Marbury  v.  Madison,  has  not  seen 
proper  to  vest  it  in  these  inferior  tribunals;  nor  is  it  matter  of 
surprise,  when  we  recollect  to  what  extent  the  executive  departments 
would  have  been  subjected  to  the  judicial  power. 

Should  we,  then,  by  doubtful  implication  and  a  strained  construc- 
tion, apply  this  highest  of  judicial  powers,  in  its  nature  broad  as  the 
Union,  to  this  ten  miles  square?  That  the  power  can  only  be  main- 
tained to  exist  by  implication,  and  not  by  express  enactment,  is  ad- 
mitted on  all  hands.  It  never  was  attempted  to  be  conferred,  in  ex- 
press terms,  save  on  the  Supreme  Court ;  and  is  the  construction  that 
invokes  it  for  the  circuit  court  of  this  District  a  strained  one?  The 
tenth  section  of  the  repealed  act  of  the  13th  of  February,  1801,  de- 
clares "that  the  circuit  courts  then  established  shall  have,  and  are 
hereby  invested  with,  all  the  powers  heretofore  granted  by  law  to  the 
Circuit  Courts  of  the  United  States,  unless  otherwise  provided  by 
this  act."  There  is  no  repealing  clause  to  the  act.  The  section 
quoted  refers  directly  to  the  fourteenth  section  of  the  act  of  1789, 
for  the  powers  common  to  all  the  Circuit  Courts  of  the  Union.    They 


458  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part   2 

have  stood  unaltered,  and  been  recognized,  with  slight  exceptions,  as 
the  sole  powers  by  which  the  jurisdiction  of  the  Circuit  Courts  has 
been  enforced,  from  the  year  1789  to  this  time. 

It  is  insisted,  however,  that  the  jurisdiction  conferred  on  the 
circuit  court  by  the  eleventh  section  of  the  repealed  act  of  the  13th 
of  February,  1801,  is  much  broader  than  that  given  to  them  by  the 
eleventh  section  of  the  act  of  1789 ;  that  the  act  of  1801  covers  the 
whole  ground  of  the  Constitution.  This  is  certainly  true;  but  the 
fifth  section  of  the  act  of  the  27th  of  February,  1801,  declaring  what 
matters  shall  be  cognizable  in  the  circuit  court  for  the  District  of 
Columbia,  confers  jurisdiction  quite  as  comprehensive.  Its  cogni- 
zance (or  jurisdiction  "to  hold  plea")  extends  to  all  crimes  and  of- 
fenses, and  to  all  cases  in  law  and  equity,  provided  the  defendant  be 
found  in  the  district.  Thus,  as  the  eleventh  sections  of  the  act  of 
1789  and  the  13th  of  February,  1801,  each  have  reference  to  the  exer- 
cise of  jurisdiction,  in  suits  or  actions  between  litigant  parties,  or  over 
matters  in  some  form  brought  before  the  court  to  try  and  ascertain 
a  contested  right,  it  would  be  a  most  unnatural  construction  to  hold 
(as  I  think)  that  the  phrase  "cognizance  of  all  cases  in  law  and  equity" 
authorized  the  court  to  assume  the  high  power  of  coercing  by  man- 
damus one  of  the  Secretaries,  or  the  Postmaster  General,  to  the 
performance  of  some  specific  public  duty,  in  case  of  an  ascertained 
right,  by  force  of  the  strong  arm  of  sovereign  power,  because  he  was 
a  public  officer;  and  who  was  not  a  suitor  in  court,  or  party  to  a 
case  in  law  or  equity.     *     *     * 

The  truth,  there  can  be  little  room  for  doubt,  is  that  Congress  has 
been  unwilling  to  expose  the  action  of  the  government,  in  the  ad- 
ministration of  its  vast  and  complicated  affairs,  and  its  officers,  who 
have  charge  of  their  management,  to  the  danger  and  indignity  of 
being  coerced  and  controlled,  at  the  ill-defined  discretion  of  the 
inferior  courts,  by  the  writ  of  mandamus,  and  that  after  the  decision 
of  Marbury  v,  Madison,  in  1803,  holding  that  the  Supreme  Court  had 
not  the  power  thus  to  coerce  an  officer  of  the  United  States,  it  has 
been  permitted  to  lie  dormant,  awaiting  the  action  of  the  Legislature. 
The  supposition  is  rendered  highly  probable,  when  we  consider  the 
delicacy  its  exercise  would  necessarily  involve,  and  the  difficulty  of 
vesting  so  high  and  extensive  a  power  in  the  inferior  courts,  and  es- 
pecially, in  those  of  this  District,  in  a  modified  and  safe  form. 

Such  being  my  own  opinion,  I  think  the  order  awarding  the  man- 
damus against  the  Postmaster  General  should  be  reversed,  for  want 
of  jurisdiction  in  the  court  below  to  issue  the  writ. 

Judgment  affirmed.^  = 

5  5  It  was  held  in  United  States  v.  Schurz,  102  U.  S.  378,  393.  394.  26  L.  Ed. 
167  (1880),  that  the  revision  of  the  statutes  of  tlie  United  States  did  not  affect 
the  jurisdiction  of  the  Supreme  Court  of  the  District  of  Columbia  to  issue 
writs  of  mandamus. 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  459 

BATH    COUNTY   v.    AMY. 
(Supreme  Court  of  United  States,   1S71.     13  Wall.  244,  20  L.  Ed.  .^39.) 

Error  to  the  Circuit  Court  for  the  District  of  Kentucky;  the  case 
being  thus : 

The  eleventh  section  of  the  judiciary  act  of  1789,  enacts  that  "the 
Circuit  Court  shall  have  original  cognizance,  concurrent  with  the 
courts  of  the  several  states,  of  all  suits  of  a  civil  nature  at  common 
law,  *  *  '■■'  between  a  citizen  of  the  state  where  the  suit  was 
brought  and  a  citizen  of  another  state." 

The  fourteenth  section  of  the  same  act,  referring  to  certain  courts 
of  the  United  States,  including  the  Circuit  Courts,  enacts :  "That  all 
the  before-mentioned  courts  of  the  United  States  shall  have  power  to 
issue  writs  of  scire  facias,  habeas  corpus,  and  all  other  writs  not 
specially  provided  for  by  statute,  which  may  be  necessary  for  the 
exercise  of  their  respective  jurisdictions,  and  agreeable  to  the  prin- 
ciples and  usages  of  law."     *     ='■=     * 

With  those  statutes  in  force,  the  Legislature  of  Kentucky  incor- 
porated, A.  D.  1853,  the  Lexington  &  Big  Sandy  Railroad  Company. 
By  the  charter  of  the  railroad  the  county  courts  of  the  different 
counties,  through  which  it  was  to  run,  were  authorized  to  subscribe 
to  the  stock  of  the  road,  and  to  pay  their  subscriptions  by  bor- 
rowing money,  making  the  money  borrowed  payable  in  the  way  in 
which  the  county  courts  should  deem  most  advisable.  The  interest 
on  all  such  sums  borrowed  was  to  be  provided  for  in  like  manner, 
provided  that  all  taxes  laid  to  pay  either  principal  or  interest  should 
be  sacredly  appropriated  to  such  purpose  and  no  other.  A  subse- 
quent act  required  the  county  courts  to  issue  bonds,  and  to  proceed  to 
levy,  assess,  and  collect  a  tax  to  pay  the  interest  thereon,  according 
to  the  true  intent  and  meaning  of  the  previous  act. 

The  county  of  Bath  subscribed  $150,000,  and  issued  one  hundred 
and  fifty  bonds  of  $1,000  each,  payable  thirty  years  from  date,  with 
interest  semiannually,  for  which  coupons  were  annexed.  And  the 
company,  having  indorsed  them,  sold  and  put  them  into  circulation. 
The  county  court  levied  the  tax  and  paid  the  interest  for  five  years, 
and  then  stopped  payment. 

In  this  state  of  things  one  Amy,  of  New  York,  being  the  holder  of 
eighty-two  of  the  bonds,  with  the  overdue  and  unpaid  coupons,  in 
November,  1866,  made  a  written  demand  upon  the  justices,  who  com- 
posed the  county  court  of  Bath  county,  requiring  the  court  forthwith 
to  levy  the  necessary  tax  to  pay  his  coupons,  and  notified  to  each  of 
the  judges  that,  if  they  did  not  do  so,  he  would  on  the  second  day  of 
the  next  term  of  the  Circuit  Court  of  the  United  States,  sitting  in  the 
district,  move  that  court  for  the  writ  of  mandamus  requiring  them  to 
do  it.  No  tax  was  levied ;  and  at  the  next  term  of  the  Circuit  Court, 
Amy  accordingly  filed  an  affidavit  in  the  nature  of  an  information, 


460  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

setting  forth  specifically  his  case,  and  concluding  with  a  prayer  for  a 
mandamus  requiring  the  tax  to  be  levied.  The  court  granted  a  rule 
against  the  county  to  show  cause  why  the  writ  should  not  issue.  The 
county  came  and  craved  oyer  of  the  bonds  and  coupons,  which  was 
had,  upon  which  it  moved  the  court  to  discharge  the  rule,  and  also 
filed  a  response  to  the  rule  setting  forth  eleven  points  of  defense. 

By  agreement  of  counsel  a  general  traverse  of  the  facts  set  out  in 
the  response  was  entered  on  the  record,  and  the  law  and  facts  sub- 
mitted to  the  court  for  trial  and  decision.  Upon  the  trial,  the  court 
found  the  issues  for  the  plaintifif,  and  gave  judgment  awarding  a 
peremptory  writ  of  mandamus.  To  reverse  this  judgment  the  county 
brought  the  case  here;  the  chief  ground  of  the  argument  of  their 
counsel,  Messrs.  M.  Blair,  J.  G.  Carlisle,  and  J.  B.  Beck,  being  that 
under  the  fourteenth  section  of  the  act  of  September  2-i,  1789,  the 
Circuit  Court  of  the  United  States  had  no  jurisdiction  to  issue  a  writ 
of  mandamus,  there  having  been  no  previous  judgment  of  the  court 
in  favor  of  the  party  holding  the  obligations,  and  no  previous  attempt 
made  by  it  to  enforce  their  payment  by  its  ordinary  process. 

Mr.  Justice  Strong  delivered  the  opinion  of  the  court.^® 

It  must  be  considered  as  settled  that  the  Circuit  Courts  of  the 
United  States  are  not  authorized  to  issue  writs  of  mandamus,  unless 
they  are  necessary  to  the  exercise  of  their  respective  jurisdictions. 
Those  courts  are  creatures  of  statute,  and  they  have  only  so  much  of 
the  judicial  power  of  the  United  States  as  the  acts  of  Congress  have 
conferred  upon  them.  The  judiciary  act  of  1789,  which  established 
them,  by  its  eleventh  section,  enacted  that  they  shall  have  original 
cognizance,  concurrently  with  the  courts  of  the  several  states,  of  "all 
suits  of  a  civil  nature  at  coijimon  law,  or  in  equity,"  between  a  citizen 
of  the  state  in  which  the  suit  is  brought  and  a  citizen  of  another  state, 
or  where  an  alien  is  a  party.  While  it  may  be  admitted  that,  in  some 
senses,  the  writ  of  mandamus  may  properly  be  denominated  a  suit  at 
law,  it  is  still  material  to  inquire  whether  it  was  intended  to  be  em- 
braced in  the  gift  of  power  to  hear  and  determine  all  suits  at  common 
law,  of  a  civil  nature,  conferred  by  the  judiciary  act. 

At  the  time  when  the  act  was  passed  it  was  a  high  prerogative 
writ,  issuing  in  the  king's  name  only  from  the  Court  of  King's  Bench, 
requiring  the  performance  of  some  act  or  duty,  the  execution  of 
which  the  court  had  previously  determined  to  be  consonant  with  right 
and  justice.  It  was  not,  like  ordinary  proceedings  at  law,  a  writ  of 
right,  and  the  court  had  no  jurisdiction  to  grant  it  in  any  case  except 
those  in  which  it  was  the  legal  judge  of  the  duty  required  to  be  per- 
formed. Nor  was  it  applicable,  as  a  private  remedy,  to  enforce  simple 
common-law  rights  between  individuals.  Were  there  nothing  more, 
then,  in  the  judiciary  act  than  the  grant  of  general  authority  to  take 
cognizance  of  all  suits   of   a  civil   nature  at   common  law,   it   might 

6  6  Only  a  portion  of  the  opinion  is  printed. 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  461 

well  be  doubted  whether  it  was  intended  to  confer  the  extraordinary- 
powers  residing  in  the  British  Court  of  King's  Bench  to  award  pre- 
rogative writs. 

All  doubts  upon  this  subject,  however,  are  set  at  rest  by  the  four- 
teenth section  of  the  same  act,  which  enacted  that  Circuit  Courts  shall 
have  "power  to  issue  writs  of  scire  facias,  habeas  corpus,  and  all 
other  writs  not  specially  provided  for  by  statute  which  may  be  nec- 
essary to  the  exercise  of  their  respective  jurisdictions  and  agreeable 
to  the  principles  and  usages  of  law."  Among  those  other  writs,  no 
doubt,  mandamus  is  included ;  and  this  special  provision  indicates 
that  the  power  to  grant  such  writs  generally  was  not  understood  to  be 
granted  by  the  eleventh  section,  which  conferred,  only  to  a  limited 
extent,  upon  the  Circuit  Courts  the  judicial  power  existing  in  the 
government  under  the  Constitution.  Power  to  issue  such  writs  is 
granted  by  the  fourteenth  section,  but  with  the  restriction  that  they 
shall  be  necessary  to  the  exercise  of  the  jurisdiction  given.  Why 
make  this  grant  if  it  had  been  previously  made  in  the  eleventh  sec- 
tion?   The  limitation  only  was  needed. 

This  subject  has  heretofore  been  under  consideration  in  this  court, 
and  in  Mclntire  v.  Wood,  7  Cranch,  oO-i,  3  L.  Ed.  420,  it  was  unani- 
mously decided  that  the  power  of  the  Circuit  Courts  to  issue  the  writ 
of  mandamus  is  confined  exclusively  to  those  cases  in  which  it  may 
be  necessary  to  the  exercise  of  their  jurisdiction.  The  court  said  : 
"Had  the  eleventh  section  of  the  judiciary  act  covered  the  whole 
ground  of  the  Constitution,  there  would  be  much  reason  for  exer- 
cising this  power  in  many  cases  wherein  some  ministerial  act  is 
necessary  to  the  completion  of  an  individual  right  arising  under  laws 
of  the  United  States,  and  the  fourteenth  section  of  the  act  would 
sanction  the  issuing  of  the  writ  for  such  a  purpose.  But,  although 
the  judicial  power  of  the  United  States  extends  to  cases  arising  under 
the  laws  of  the  United  States,  the  Legislature  have  not  thought  proper 
to  delegate  the  exercise  of  that  power  to  its  Circuit  Courts,  except  in 
certain  specified  cases."  And  in  McClung  v.  Silliman,  6  Wheat. 
601,  5  L.  Ed.  340,  this  court  said,  when  speaking  of  the  power  to 
issue  writs  of  mandamus :  "The  fourteenth  section  of  the  act  under 
consideration  [the  judiciary  act]  could  only  have  been  intended  to 
vest  the  power  *  *  *  jn  cases  where  the  jurisdiction  already 
exists,  and  not  where  it  is  to  be  courted  or  acquired  by  means  of  the 
writ  proposed  to  be  sued  out."  In  other  words,  the  writ  cannot  be 
used  to  confer  a  jurisdiction  which  the  Circuit  Court  would  not  have 
without  it.  It  is  authorized  only  when  ancillary  to  a  jurisdiction 
already  acquired.  The  doctrine  asserted  in  both  these  cases  was 
conceded  to  be  correct  by  both  the  majority  and  the  minority  of  the 
court  in  Kendall  v.  United  States,  12  Pet.  524,  9  L.  Ed.  1181.  Tht 
power  to  issue  a  writ  of  mandamus  as  an  original  and  independent 
proceeding  does  not,  then,  belong  to  the  Circuit  Courts.     *     *     * 

Applying  this  rule  to  the  present  case,  it  is  decisive.     The  relator's 


4G2  RKLIEL'   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

claim  for  payment  had  not  been  brought  to  judgment  in  the  Circuit 
Court,  nor  had  it  been  put  in  suit.  His  apphcation  for  a  manda- 
mus was,  therefore,  an  original  proceeding,  neither  necessary  nor 
ancillary  to  any  jurisdiction  which  the  court  then  had.  For  this  rea- 
son it  should  have  been  denied,  and  the  judgment  that  a  peremptory 
mandamus  should  issue  was  erroneous. 

Judgment  reversed,  and  the   cause  remanded   with   instructions   to 
dismiss  the  petition  for  a  mandamus. ^'^ 


UNITED   STATES   ex   rel.   SEEGER  v.   PEARSON.   Postmaster. 
(Circuit  Court  of  United  States,  S.  D.  New  Yorlc.  1S87.    32  Fed.  .309.) 

Mandamus. 

The  relator  alleges  that  he  is  the  editor  and  proprietor  of  a  news- 
paper periodical  called  "Medical  Classics."  and  has  requested  the  de- 
fendant, who  is  the  postmaster  of  New  York,  to  enter  and  transmit 
through  the  mails  this  publication  as  second-class  matter.  This  re- 
quest was  refused  by  the  defendant,  and  the  publication  was  charged 
a  higher  rate  of  postage,  as  third-class  matter,  because  held  to  be 
designed  as  an  advertising  medium.  The  relator  denies  any  such  pur- 
pose. On  appeal  by  the  relator  to  the  First  Assistant  Postmaster 
General,  this  refusal  was  sustained ;  and  the  relator  brings  this  pro- 
ceeding to  compel  the  defendant,  by  mandamus,  to  receive  and 
transmit  the  publication  as  second-class  matter. 

Brown,  J.  I  am  constrained,  by  the  weight  of  authority,  to  de- 
cline to  entertain  this  proceeding  by  mandamus.  A  long  line  of 
decisions  of  the  Supreme  Court  has  affirmed  the  broad  doctrine  that 
the  Circuit  Court  has  no  jurisdiction  to  issue  a  writ  of  mandamus  as 
an  original  proceeding,  but  only  as  ancillary  to  some  other  proceedings 
or  right  of  which  it  has  jurisdiction. 

Considering  that  the  fourth  subdivision  of  section  629  of  the  Re- 
vised Statutes  (U.  S.  Comp.  St.  1901,  p.  503)  gives  the  Circuit  Court 
express  jurisdiction  "of  all  causes  arising  under  the  postal  laws" 
(Act  March  3,  1845,  5  Stat.  739),  and  that  the  fourteenth  section 
of  the  judiciary  act  (section  710,  Rev.  St.  [page  580,  U.  S.  Comp. 
St.])  authorizes  the  federal  courts  to  issue  such  writs  whenever 
"necessary  for  the  exercise  of  their  respective  jurisdictions,  and 
agreeable  to  the  usages  and  principles  of  law,"  it  might  have  been 
inferred,  in  the  absence  of  authority,  that  if  the  relator  was  entitled 
to  the  relief  demanded,  according  to  the  general  usage  and  practice 

5  7  So  Eosenbaum  v.  Bauer,  120  U.  S.  450,  7  Sup.  Ct.  G33,  30  L.  Ed,  743 
(1887). 

As  to  power  of  federal  courts  to  issue  mandamus  to  municipal  corporations 
to  levy  taxes  required  for  the  payment  of  judgments,  as  an  ancillary  jurisdic- 
tion to  the  enforcement  of  judgments  recovered  in  those  courts,  see  Riggs  v. 
Johnson  Co.,  G  Wall.  16G,  18  L.  Ed.  7G8  (1867). 


I    Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  463 

-  of  the  law,  and  if  a  writ  of  mandamus  was  the  proper  remedy  for 
i  such  rehef,  the  writ  might  have  been  issued  in  the  exercise  of  the 
proper  jurisdiction  of  the  court,  inasmuch  as  the  cause  is  one  arising 
exclusively  "under  the  postal  laws." 

Upon  repeated  examination  of  the  decisions  of  the  Supreme  Court, 
i  however,  I   cannot  find  myself  authorized  to  treat   this  question   as 
an  open  one.     In  most  of  the  cases  in  which  the  question  has  arisen, 
the  Circuit   Court  had    undoubted  original   jurisdiction  of   the   sub- 
ject-matter of  the  proceedings,  under  some  one  or  other  of  the  ex- 
press provisions  of  the  statutes,  quite  as  clear  as  is  its  authority  to 
determine  "all  causes  arising  under  the  postal  laws."     Nevertheless, 
the  right   to  pursue   the   remedy  by   means   of   an   original   writ  of 
I  mandamus  has  been  uniformly  denied.     Mclntire  v.  Wood,  7  Cranch, 
;  504.  3  L.  Ed.  420 ;   McClung  'v.  Silliman,  6  Wheat.  598,  5  L.  Ed.  340 ; 
i  Bath  Co.  v.  Amy,  13  Wall.  244,  20  L.  Ed.  539 ;    Graham  v.  Norton, 
I  15  Wall.  427,  21  L.  Ed.  177 ;    County  of  Greene  v.  Daniel,  102  U.  S. 
I  187,  26  L.  Ed.  99 ;   Davenport  v.  County  of  Dodge,  105  U.  S.  237,  26 
j  L.  Ed.  1018:    Rosenbaum  v.  Board  (C.  C.)   28  Fed.  223;    U.  S.  ex 
;  rel.  Reed  v.  Smallwood^  1  Chi.  Leg.  N.  321,  Fed.  Cas.  No.  16,315. 

i  Without  considering,  therefore,  in  what  cases,  or  to  what  ex- 
I  .  .  .  .  • 

tent,  a  review  of  the  decision  of  the  postmaster  or  of  the  Assistant 

:  Postmaster  General,  as  respects  the  determination  of  the  question  of 

:  fact  upon  which  the   rating  of   postal  matter  depends,   is  either  re- 

I  viewable  at  all,  or  under  a  proceeding  by  mandamus   (see  Carrick  v. 

j  Lamar,  116  U.  S.  423,  6  Sup.  Ct.  424,  29  L.  Ed.  677),  I  must  dismiss 

[  the  application  upon  the  ground  first  stated. ^^ 

j  5s  The  following  cases  in  this  collection  are  cases  of  mandamus:  State  v. 
I  Justices.  15  Ga.  408  (1854);  People  ex  rel.  Sheppard  v.  111.  State  Board  of 
I' Dental  Examiners,  110  111.  180  (1884)  ;  Illinois  State  Board  of  Dental  Ex- 
iiaminers  v.  People,  123  111.  227,  13  N.  E.  201  (1887);  Harrison  v.  People,  222 
I  111.   1.50,  78  N.   E.   52  (1906) ;     Ex  parte   Sparrow,    138  Pa.   116,  20  Atl.   711 

(1890) ;  Ayers  v.  Hatch.  175  Mass.  489.  56  N.  E.  612  (190O) ;  People  ex  rel. 
;  Greenwood  v.  Board  of  Supervisors  Madison  Co..   125  111.  334.  17  N.  E.  802 

(1888) ;    Allbutt  v.  General  Council,  23  Q.  B.  D.  400  (1889) ;    Potts  v.  Breen.  167 

111.  67,  47  N.  E.  81,  39  L.  R.  A.  152,  59  Am.  St.  Rep.  262  (1897) ;    People  ex  rel. 

Bush  V.  Collins.  7  Johns.  (N.  Y.)  549  (1811)  ;    Gage  v.  Censors,  63  N.  H.  92. 

.56  Am.  Rep.  492  (1884) ;  People  ex  rel.  Lodes  v.  Department  of  Health.  189 
I  N.  Y.  187,  82  N.  E.  187,  13  L.  R.  A.  (N.  S.)  894  (1907)  ;    People  ex  rel.  Fonda 

V.  Morton.  148  N.  Y.  156,  42  N.  E.  538  (1896)  ;    U.  S.  ex  rel.  Roop  v.  Douglass. 

19  D.  C.  99  (1890)  ;    U.  S.  v.  Black,  128  U.  S.  40.  9  Sup.  Ct.  12.  32  L.  Ed.  3.54 

(1888);    U.   S.  Y.  Hitchcock.  190  U.  S.  316.  23  Sup.  Ct.  698.  47  E.  Ed.  1074 

(1903) ;    People  ex  rel.  Raster  v.  Healy.  2.30  111.  280.  82  N.  E.  599.  15  L.  R. 

A.  (N.  S.)  603  (1907);  People  ex  rel.  Post  v.  Healy,  231  111.  029,  83  N.  E. 
'453  (1908). 


4G4  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 


SECTION  56.— CERTIORARI 


The  writ  of  cortiorari  is  used  for  the  purpose  of  bringing  up  for  review : 

1.  The  judgment  of  a  court,  where  appeal  or  writ  of  error  Is  not  a  matter 
of  right,  but  the  higher  court  directs  the  case  to  be  certified  to  it  by  the  lower 
court  for  review.  .So  under  section  d  of  the  federal  Circuit  Court  of  Appeals 
Act  of  March  3,  1891  (U.  S.  Comp.  St.  1901,  p.  549). 

2.  The  conviction  of  an  inferior  court  of  criminal  jurisdiction.  See,  e.  g., 
.Tackson  v.  People,  9  Mich.  Ill,  77  Am.  Dec.  491  ( 18(50),  post.  p.  475,  and 
Schaezlein  v.  Cabaniss,  1.35  Cal.  4GG,  G7  Pac.  755,  50  L.  R.  A.  733,  87  Am.  St. 
Kep.  122  (1902),  ante,  p.  50. 

3.  The  quasi  judicial  decisions  of  administrative  authorities. 

It  is  only  the  latter  ajiplication  which  is  to  be  here  considered. 

Hawkins,  Pleas  of  the  Crown,  II,  c.  27,  one  of  the  chief  authorities  for  the 
writ,  deals  mainly  with  the  second  application. 

The  best  account  of  the  writ  as  an  administrative  law  remedy  is  an  article 
by  Prof.  F.  J.  Goodnow  on  the  Writ  of  Certiorari  in  0  Polit.  Science  Quarterly, 
p.  493, 


SECTION  57.— SAME— AUTHORITIES  AND  ACTIONS  SUB- 
JECT TO  WRIT 


BALL  V.  PATTRIDGE.^' 

(Court  of  King's  Bench,  1066.     1  Sid.  296.) 

By  statute  Car.  II  it  is  enacted  that  there  shall  be  certain  Commis- 
sioners who  shall  have  power  to  receive  claims  concerning  the  fens 
in  Cambridge,  Huntington,  etc.,  and  to  decide  the  boundaries  of  them, 
and  that  they  shall  make  decrees  and  return  them  in  the  petty  bag 
in  chancery.  And  motions  were  made  several  times  for  certiorari  to 
remove  the  proceedings  before  the  commissioners,  and  some  were 
granted.  But  afterwards,  on  consideration  of  the  statute,  they  re- 
solve that  no  certiorari  will  lie.  And  if  there  shall  be  any  [writ],  it 
shall  be  procedendo,  for  (by  The  Court)  this  is  a  new  judicature 
absolute  in  the  commissioners  by  this  new  law,  with  which  this  court 
has  nothing  to  do  if  they  proceed  according  to  the  statute,  for  then  it 
binds  perpetually,  but  if  they  do  not  proceed  according  to  statute 
then  all  is  void  and  coram  non  judice,  and  the  parties  are  at  liberty 
to  examine  this  in  an  action  brought  at  common  law. 

5  9  The  original  report  is  in  Norman  French. 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  465 

REX  V.  INHABITANTS  IN  GLAMORGANSHIRE. 

(Court  of  King's  Bench,  1700.     1  Ld.  Raym.  580.) 

Orders  were  made  by  the  justices  of  peace,  for  levying  money,  for 
repairing  Caerdiffe  bridge,  by  virtue  of  the  23  Eliz.  c.  11.  And  it 
was  objected  by  Mr.  Earle  and  Mr.  Lechmore,  that  this  court  cannot 
in  this  case  grant  a  certiorari;  because  it  was  a  new  jurisdiction 
erected  by  a  new  act  of  Parhament,  the  trust  of  the  execution  of 
which  is  reposed  in  the  justices,  and  this  court  has  nothing  to  inter- 
meddle with  it;  for  if  they  proceed  according  to  the  statute,  then 
there  is  no  reason  to  remove  their  orders ;  tut  if  not,  then  what  they 
do  is  coram  non  judice,  and  void.  And  the  parties  may  examine  the 
legality  of  their  proceedings  in  an  action;  and  so  it  was  held  in  a  case 
of  decrees  made  by  commissioners  upon  the  act  for  the  fens.  1. 
Sid.  296,  Ball  v.  Partridge;  Hardr.  480,  Terry  v.  Huntington;  Cro. 
Car.  394,  Nichols  v.  Walker.  And  no  certiorari  lies  to  remove  orders 
made  by  commissioners  of  bankrupts. 

Sed  non  allocatur.  For  this  court  will  examine  the  proceedings  of 
all  jurisdictions  erected  by  act  of  Parliament.  And  if  they,  under 
pretence  of  such  act,  proceed  to  incroach  jurisdiction  to  themselves 
greater  than  the  act  warrants,  this  court  will  send  a  certiorari  to 
them,  to  have  their  proceedings  returned  here ;  to  the  end  that  this 
court  may  see,  that  they  keep  themselves  within  their  jurisdiction; 
and  if  they  exceed  it,  to  restrain  them.  And  the  examination  of  such 
matters  is  more  proper  for  this  court.  As  in  the  case  in  question ; 
whether  the  act  of  Queen  Elizabeth  impowers  the  justices  to  raise 
money  to  mend  wears,  and  to  determine  the  doubt  upon  the  act.  As 
to  the  cases  of  orders  made  by  commissioners  of  sewers,  and  of  the 
fens,  the  court  is  cautious  in  granting  certioraris ;  and  first  they 
make  inquiry  into  the  nature  of  the  fact,  and  what  will  be  the  conse- 
quence of  granting  the  writ;  because  the  country  may  be  drowned 
in  the  mean  time,  whilst  the  commissioners  are  suspended  by  the 
certiorari.  But  that  is  only  a  discretionary  execution  of  the  power 
of  the  court.  And  as  the  commissioners  of  bankrupts  he  said,  that 
they  had  only  an  authority,  and  not  a  jurisdiction.     *     *     * 

Then  exception  was  taken  to  the  orders,  that  the  money  ordered  to 

be  levied   was    for   repairing   the   wears,   to   do   which    they  had   no 

j   jurisdiction,  but  only  to  raise  money   for  the   repair  of  the  bridge ; 

and  their  authority  being  special,  they  ought  to   confine   themselves 

I    within   it.      But    Holt,    Chief   Justice,   held   that,   in    regard   that   at 

j   the  time  of  the  making  of  the  act,  these  wears  were  built  as  necessary 

[   to  support  the  bridge,  by  virtue  of  the  powers  given  by  the  act  of 

I  the  queen  for  rebuilding  of  the  bridge,  and  were  esteemed  so  then 

and  ever  since,  this   court  will  esteem  them  accordingly  still;    and 

Fr.Adm.Law— 30 


466  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

therefore  consequential  to  the  power  for  rebuilding  and  repairing  of 
the  bridge,  and  especially  when  they  are  averred  to  be  so  in  the  orders. 
And  Gould  and  Turton,  Justices,  agreed.     *     *     *  ®* 


TREASURER  OF  CITY  OF  CAMDEN  v.  MULFORD. 

(Supreme  Court  of  New  Jersey,  1856.     26  N.  J.  Lraw,  49.) 

The  Chief  Justice;  delivered  the  opinion  of  the  court.® ^ 
This  action  is  brought  by  the  treasurer  of  the  city  of  Camden  to 
recover  of  the  defendant  the  expenses  of  paving  Pine  street,  in  said 
city  in  front  of  the  premises  of  the  defendant.     *     *     * 

Whether  the  ordinances  of  a  municipal  corporation  are  subject 
to  removal  and  review  by  writ  of  certiorari  has  recently  been  ques- 
tioned by  high  judicial  authority;  and  although  the  point  was  not 
mooted  upon  the  argument  of  this  case,  its  importance  demands  con- 
sideration. In  the  case  of  People  v.  Mayor,  etc.,  of  New  York,  2  Hill 
(N.  Y.)  11,  Mr.  Justice  Bronson,  in  delivering  the  opinion  of  the 
court  said :  "The  powers  exercised  by  the  common  council  of  the 
city  of  New  York  are  for  the  most  part  either  legislative,  executive, 
or  judicial,  and  a  certiorari  only  lies  to  inferior  courts  and  officers 
who  exercise  judicial  powers.  If  it  were  not  for  a  few  modern  cases, 
I  should  be  of  opinion  that  we  have  no  authority  to  supervise  in 
this  way  the  acts,  ordinances,  and  proceedings  of  the  corporation  of 
the  city  of  New  York,  or,  indeed,  of  any  other  corporation,  public 
or  private.  *  »  *  All  our  city  and  many  of  our  village  corpora- 
tions have  been  vested  with  very  large  powers  within  their  respective 
limits;  and,  if  a  certiorari  will  lie  to  remove  into  this  court  an  or- 
dinance for  constructing  a  sewer,  it  is  difficult  to  see  where  we  can 
stop  short  of  reviewing  all  their  acts  in  the  same  way,  which  looks 
to  me  like  a  great  stretch  of  jurisdiction."  In  the  Matter  of  Mt. 
Morris  Square,  2  Hill  (N.  Y.)  14,  it  was  held  by  the  same  learned 
court  (Mr.  Justice  Cowen  delivering  the  opinion)  that  the  acts  of 
municipal  corporations,  if  plainly  judicial  in  their  character,  may  be 
reviewed  on  certiorari.  But  he  said  a  certiorari  to  reverse  a  mere 
corporate  act  is  without  precedent,  though  if  it  should  be  altogether 

6  0  Only  a  portion  of  this  case  is  printed. 

"There  was  a  mistake  made  by  the  commissioners  of  sewers,  grounded  upon 
this:  that  where  St.  23  Hen.  VIII,  c.  5.  says  that  the  commissioners  in  several 
cases  there  mentioned  shall  certify  their  proceedings  into  chancery,  after- 
wards by  St.  13  Eliz.  c.  0,  it  is  enacted  that  thereafter  tlie  connnissioners  shall 
not  be  compelled  to  certify  or  return  their  proceedings,  which  they  interpreted 
to  extend  to  a  certiorari;  and  thereupon  they  refused  to  obey  tiie  certiorari, 
but  they  were  all  committed;  and  yet  the  statute  does  not  give  authority  to 
this  court  [King's  Bench]  to  grant  a  certiorari,  but  it  is  by  the  common  law 
that  this  court  will  examine,  if  other  courts  exceed  their  jurisdictions." 
Groenvelt  v.  Burwell,  1  Ld.  Raym.  454,  469   (16S9). 

01  Only  a  portion  of  the  opinion  is  printed. 


Ch.  8)  ACTIONS   FOR   SPECIFIC    RELIEF.  467 

destitute   of    authority,   and    followed   by   a   judicial   decision,    which 
would  therefore  be  void   for  want  of  jurisdiction,  the  corporate  act 
might  be  examinable  on  certiorari,  as  incidentally  vitiating  the  latter. 
The  effect  of  the  principle  thus  stated  would   seem  to  be  that  if 
a  city  ordinance  directs  a  sewer  to  be  built  and  a  street  to  be  paved, 
and  provides    that    the   expenses   of    the    improvement    shall   be    as- 
sessed  upon  persons   benefited,   the   assessment,  being  of   a  judicial 
character,   may  be   reviewed  on   certiorari,   and   the   validity   of    the 
ordinance  thus  incidentally  drawn  in  question.     But  if  the  ordinance 
directs  not  only  that  the  improvement   shall  be  made,   but  that  the 
expenses  shall  be  borne  by  the  landholders  by  or  over  whose  prop- 
j    erty  it  may  pass,  the  party  aggrieved  is  not  entitled  to  protection  by 
'    the  writ  of  certiorari.     Whatever  may  be  the  rule  upon  ti'is  subject 
adopted  in  other  states,  it  is   certain   that  the  remedy  by  certiorari 
I   in  this  state  is  more  extensive  and  efficacious,  and  rests  upon  broader, 
I   and,  as  we  apprehend,  upon  more  reasonable,  ground.     *     *     * 
i       Thus    it   is   habitually    used   as   a   remedy   against   unlawful   taxa- 
■   tion,  either  for  state,  county,  township,  or  city  purposes ;    and  while 
I   the  remedy  has  been  denied  in  other  states,  as  dangerous  or  preju- 
'   dicial  to  the  public  welfare,  no  such  evil  has  been  experienced  from 
'  the  use  of  the  remedy,  while  it  has  been  found  eminently  salutary 
!  and  efficacious  as  a  protection  to  private   rights   against   oppressive 
and  illegal  taxation.     *     *     * 

One  of  the  most  familiar  uses  of  the  writ  is  to  test  the  validity 

'  of  the  proceedings  of  surveyors  and  freeholders  in  laying  out  and 

confirming   of   public   highways,    though,   according   to   some   of   the 

I  authorities,  the  laying  out  of  streets  and  highways  is  the  mere  ex- 

'i  ercise  of  municipal  or   corporate   power,   without   the   semblance   of 

judicial  decision.     *     *     * 
I      In  the  courts  of  New  York  and  Massachusetts  it  seems  to  be  well 
I  settled  that  the  certiorari  lies  only  to  examine  the  validity  of  such 
1  ordinances  of  a  municipal  corporation  as  are  of  a  judicial  character, 
:  not  such  as  are  legislative  or  ministerial  in  their  nature.     *     *     * 
I      But  as  to  what  constitutes  a  judicial  act  the  authorities  are  by  no 
i  means  agreed.     The  Supreme  Court  of  New  York  have  repeatedly 
\  held  that  an  ordinance  directing  a  sewer  to  be  built  is  not  a  judicial, 
1  but  a  ministerial,  act.     In  re  Mt.  Morris  Square,  2  Hill  21 ;    People 
I  v.  Mayor,  etc.,  of  City  of  New  York,  5  Barb.  43 ;    People  v.  Mayor, 
etc.,  of  City  of  Brooklyn,  9   Barb.  533.     And  this  seems  to  be  the 
opinion  of  Mr.  Justice  Vredenburgh,  in  State  v.  Newark,  25  N.  J. 
I  Law,  426.     But  in  Rochester  White  Lead  Co.  v.  City  of  Rochester, 
3  N.  Y.  (N.  Y.)  467,  53  Am.  Dec.  316,  Mr.  Justice"  Taylor,  in  de- 
livering the  opinion  of  the  Court  of  Appeals,  said  the  charter  of  the 
city  of  Rochester  confers  upon  the  common  council  power  to  cause 
common  sewers,  drains,  vaults,  and  bridges  to  be  made  in  any  part 
of  the  city.     The  ordinance  of  the  common   council  directing  such 
public  improvement  is  judicial  in  its  nature,   and  extends  immunity 


•4G8  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part   2   J 

from   private   action   for  damages   to  those   who   perform   the   duty.  \ 
In  Parks  v.  Boston,  8  Pick.  218,  19  Am.  Dec.  322,  the  Supreme  Court  j 
of  Massachusetts  held  that  the  power  vested  in  the  mayor  and  al-  : 
ilermen  of   Boston,   as   to  laying  out   or  altering   streets,   whenever, 
in  their  opinion,  the  safety  or  convenience  of   the  inhabitants   shall 
require  it,  is  judicial  in  its  character.*'-     But  this  is  questioned  and 
pronounced    anomalous   by    Mr.    Justice    Cowen    in    Re    Mt.    Morris 
Square,  2   Hill  22. 

The  true  principle  seems  to  be  that  ordinances  directing  the  mere 
repairing  or  repaving  of  streets  or  reconstructing  of  sewers  or  bridg- 
es, which  are  enjoined  upon  municipal  corporations  as  matters  of 
duty,  are  purely  ministerial,  but  that  ordinances  directing  new  streets 
to  be  opened  or  altered,  new  sewers  to  be  constructed,  or  other 
similar  public  improvements  to  be  made,  by  which  the  property  of 
individuals  is  taken  or  affected,  are  in  their  nature  judicial.  So 
where  a  municipal  corporation  is  authorized  by  ordinance  to  re- 
quire the  paving  of  streets,  not  as  a  matter  of  ordinary  repair,  but 
upon  specified  conditions  only,  and  to  impose  the  burthen  not  upon 
the  city  treasury,  but  upon  a  specific  class  of  individuals,  the  ordi- 
nance is  in  its  nature  judicial.  These  po.wers  and  duties  are  in 
their  character  very  similar,  and  in  many  particulars  identical  with 
those  imposed  by  the  act  of  Parliament  (21  Hen.  VHI,  c.  5)  upon 
the  commissioners  of  sewers  in  England.  The  orders  of  these  com- 
missioners have  always  been  held  to  be  judicial  in  their  character, 
and  subject  to  review  by  certiorari.     *     *     *  '^^ 


DRAINAGE  COM'RS  v.  GRIFFIN. 

(Supreme  Court  of  Illinois,  1800.     134  111.  330,  25  N.  E.  09.5.) 

Bailey,  J.***  This  was  a  common-law  writ  of  certiorari,  brougtit 
to  review  certain  proceedings  of  the  commissioners  of  the  Mason 
&  Tazewell  Special  Drainage  District.  "^^  *  *  Said  proceeding-s 
resulted  in  an  order  by  said  commissioners  enlarging  the  boundaries 
of  said  district  in  accordance  with  the  prayer  of  the  petition.  Va- 
rious of  the  owners  of  the  land  thus  annexed  presented  to  the  cir- 
cuit court  of  Tazewell  county  their  petition  for  a  certiorari,  alleging, 
among  other  things,  that  the  proceedings  by  which  the  boundaries 
of  said  district  had  been  enlarged  were  irregular,  and  without  juris- 
ts In  this  case  the  writ  of  certiorari  was  allowed. 

^>;'  Certiorari  allowed  to  review  action  in  laying  out  liighways  in  Commis- 
sioners of  Highways  v.  Harper,  38  111.  103  (1865);  People  v.  Brighton,  20 
IMich.  57  (1870) ;  Boston  &  Maine  R.  R.  v.  Folsom,  46  N.  H.  64  (1865) ;  State  v. 
Fond  du  Lac,  42  Wis.  287  (1877). 

Certiorari  not  allowed  to  review  tax  proceedings  in  Michigan.    Whitbeck  v. 
Hudson,  50  Mich.  86,  14  N.  W.  708  (1880). 
«4  Only  a  portion  of  the  opinion  of  Bailey,  J.,  is  printed. 


,  Ch.  8)                                    'ACTIONS   FOR   SPECIFIC   RELIEF.                                          4G9 

I  diction  or  lawful  authority  on  the  part  of  said   commissioners,  and 

!  praying  that  the  record  of  said  proceedings  be  brought  before  said 
court,  and  that  said  order  of  annexation  to  or  extension  of  the 
boundaries  of   said   special   drainage  district,   and   the  entry   thereof 

1  in  the  records  of  said  district,  be  reversed,  set  aside,  and  annulled. 

'  On  said  petition   a   writ  of  certiorari   was   duly  issued   and    served, 

i  and  thereupon  said  commissioners  made  return  to  said  writ  by  cer- 
tifying to  said  court  the  record  of  said  proceedings.     On  inspection 

'  of  said  record,  the  court  entered  judgment  quashing  the  same,  and 

'  ordering  that  it  be    forever   held   for  naught.      Said  judgment   was 

i  affirmed  by  the  Appellate  Court   (28  111.  App.  561),  and  an  appeal 

[  has  now  been  taken  to  this  court.     *     *     * 

i  It  is  strenuously  urged  that  certiorari  is  not  the  proper  remedy, 

I  the  contention  being  that  the  petitioners  should  have  resorted  to  an 

i  information  in  the  nature  of  a  quo  warranto.     We  need  not  pause 

I  to  determine  whether  quo  warranto  would  lie  or  not,  as  we  know  of 

1  no  rule  which,  in  this  case,  would  make  that  remedy  necessarily  ex- 

;  elusive,  even  if  it  should  be  held  to  be  a  proper  or  available  remedy. 

I  The  only  question  is  wdiether  the  alleged  defects  in  the  proceedings 

[  for  the   enlargement   of    the   drainage    district   are    such    as    can    be 

[  reached  and  remedied  by  writ  of  certiorari,  and  this  question  is  in 

I  no  way  dependent  upon  whether  a  writ  of  quo  warranto  might  not 

'  also  lie  to  oust  the  drainage  commissioners  of  their  control  over  the 

i  territory  annexed,   or   to   dissolve   the  organization   of  the    drainage 

!  district  so  far  as  it  applies  to  that  territory.     The  writ  of  certiorari 

i  is   a   well-known   common-law   writ,    and    in    England   the    court    of 

I  King's  Bench  has  always  been  in  the  practice  of  awarding  it  to  in- 

j!  ferior  jurisdictions,  commanding  them  to  send  up  their  records   for 

'  inspection.     By  adopting  the  common  law,  we  have  adopted  this  as 

'  a  recognized   legal   remedy,  and   in   this    state   any   court  exercising 

j  general,  common-law  jurisdiction  has,  unless  expressly  forbidden  to 

'  do  so  by  the   statute,  an  inherent  authority  to   issue   it.     People  v. 

I  Wilkinson,  13  111.  660 ;   Miller  v.  Trustees,  88  111.  26 ;   3  Am.  &  Eng. 

j  Enc.  Law,  tit.  "Certiorari."     Neither  in  England  nor  in  this  state  is 

I  it  held  to  be  a  writ  of  right,  but  it  issues,  in  proper  cases,  only  upon 

I  application  to  the  court,  on  proper  cause  shown. 

I  We  have   repeatedly  held   that   said   writ  may  be  awarded  to  all 

j  inferior  tribunals  and  jurisdictions  where  it  appears  that  they  have 

j  exceeded  the  limits  of  their  jurisdictions,  or  in  cases  where  they  have 

I  proceeded  illegally,  and  no  appeal  is  allowed,  and  no  other  mode  is 
provided  for  reviewing  their  proceedings.     Gerdes  v.  Champion,  108 

!  111.   137;    Doolittle  v.    Railroad   Co.,   14   111.   381;    Railroad    Co.   v. 

i  Whipple,  22  111.  105;    Railroad  Co.  v.  Fell,  22  III.  333.     The  pur- 

I  pose  of  the  writ  is  to  have  the  entire  record  of  the  inferior  tribunal 

I  brought  before  the  superior  court  to  determine  whether  the  former 

I  had  jurisdiction,  or  had  exceeded  its  jurisdiction,  or  had  failed  to 

i  proceed  according  to   the   essential   requirements   of   the   law.     The 


470  lUOLIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

trial  is  solely  by  inspection  of  the  record,  no  inquiry  as  to  any  mat- 
ter not  appearing-  by  the  record  being  permissible,  and,  if  the  want 
of  jurisdiction  or  illegality  appears  by  the  record,  the  proper  judg- 
ment is  that  the  record  be  quashed. 

Undoubtedly,  where  the  controversy  involves  the  investigation  of 
facts  not  appearing  upon  the  record,  certiorari  is  not  the  proper  reme- 
dy. Thus,  if  in  the  present  case  the  right  to  have  the  proceedings 
by  which  the  lands  in  question  were  annexed  to  the  drainage  dis- 
trict set  aside,  and  the  drainage  commissioners  ousted  of  the  corpo- 
rate authority  they  now  claim  to  exercise  over  said  lands,  depended 
upon  facts  which  could  be  established  only  by  evidence  de  hors  the 
record,  the  writ  of  certiorari  would  manifestly  be  of  no  avail.  It 
may  be  admitted  that  in  such  case  quo  warranto  would  be  the  ex- 
clusive remedy.  But  here  the  want  of  jurisdiction,  if  it  exists  at 
all,  appears  upon  the  face  of  the  record.  If,  then,  the  proceedings 
of  the  drainage  commissioners  enlarging  the  boundaries  of  the  dis- 
trict constitute  a  subject-matter  which  may  be  reviewed  by  certiorari, 
that  must  be  held  to  be  an  appropriate  remedy. 

The  general  rule  seems  to  be  that  this  writ  lies  only  to  inferior 
tribunals  and  officers  exercising  judicial  functions,  and  the  act  to 
be  reviewed  must  be  judicial  in  its  nature,  and  not  ministerial  or 
legislative.  Locke  v.  Lexington,  122  INIass.  290;  State  v.  Mayor, 
;M  Minn.  250,  25  N.  W.  449 ;  In  re  Wilson,  32  Minn.  145,  19  N.  W. 
723 ;  Robinson  v.  Supervisors,  16  Cal.  208 ;  Ex  parte  Fay,  15  Pick. 
(Mass.)  243;  Stone  v.  Mayor,  etc.,  25  Wend.  (N.  Y.)  157;  Es- 
meralda Co.  V.  District  Court,  18  Nev.  438,  5  Pac.  64;  Thompson 
v.  Multnomah  Co.,  2  Or.  34.  But  it  is  not  essential  that  the  pro- 
ceedings should  be  strictly  and  technically  "judicial,"  in  the  sense 
in  which  that  word  is  used,  when  applied  to  courts  of  justice.  It 
is  sufficient  if  they  are  what  is  sometimes  termed  "quasi  judicial." 
The  body  or  officers  acting  need  not  constitute  a  court  of  justice 
in  the  ordinary  sense.  If  they  are  invested  by  the  legislature  with 
the  power  to  decide  on  the  property  rights  of  others,  they  act  judi- 
cially in  making  their  decision,  whatever  may  be  their  public  char- 
acter.    Robinson   v.    Supervisors,   supra. 

Thus  it  is  held  that  this  writ  lies  to  review  the  proceedings  of 
supervisors,  commissioners,  city  councils,  etc.,  in  opening,  altering, 
or  discontinuing  public  streets  and  highways  as  to  their  legality,  or  reg- 
ularity, though  not  as  to  the  question  of  the  expediency  of  such  im- 
provements. 3  Am.  &  Eng.  Enc.  Law,  65,  and  authorities  cited  in  note 
4.  So,  also,  in  some  states,  it  has  been  held,  subject  to  the  foregoing 
qualification,  to  be  the  proper  writ  to  correct  illegalities  in  the  levy- 
ing of  taxes  and  local  assessments  by  assessors,  commissioners,  etc. 
(Id.),  though  in  this  state  it  has  been  refused  where  the  defense  of 
illegality  could  be  made  at  the  hearing  of  the  application  for  judg- 
ment (Pease  v.  City  of  Chicago,  21  111.  500).  The  writ  has  also 
been  held  to  lie  to  review  the  action  of  school  trustees  in  uniting 


Ch.  8)  'ACTIONS   FOR   SPECIFIC   RELIEF.  471 

and  in  dividing  school  districts  (Miller  v.  Trustees,  88  111.  26;  State 
V.  Whitford,  54  Wis.  150,  11  N.  W.  42-t) ;  or  of  a  town  board  in 
removing  an  assessor  (Merrick  v.  Town  of  Arbela,  41  Mich.  630, 
2  N.  W.  932) ;  or  of  a  city  council  in  removing  a  city  officer  (May- 
or V.  Shaw,  16  Ga.  172) ;  or  of  a  city  council  in  granting  a  fer- 
ry license  (Ex  parte  Fay,  15  Pick.  [Mass.]  243);  or  of  a  board 
of  supervisors  in  ordering  an  election  to  relocate  a  county  seat  (Her- 
rick  v.  Carpenter,  54  Iowa,  340,  6  N.  W.  574) ;  or  of  a  board  of 
supervisors  in  creating  the  office  of  clerk  of  said  board,  and  rais- 
ing certain  salaries  which  had  been  fixed  by  statute  (Robinson  v. 
Supervisors,  16  Cal.  208).  The  foregoing  are  a  few  of  the  many 
cases  where  this  writ  has  been  held  to  lie,  and  sufficiently  illustrate 
the  rules  above  stated. 

The  proceedings  by  which  the  boundaries  of  the  drainage  dis- 
trict in  question  were  enlarged  by  the  drainage  commissioners  were, 
at  least  in  most  of  their  important  features,  judicial  in  their  charac- 
ter. The  commissioners  were  required  to  ascertain  and  determine 
from  evidence  whether  the  requisite  number  of  the  adult  owners  of 
land  in  the  district  had  signed  the  petition  for  the  annexation  of 
the  adjoining  lands,  and  whether  the  signers  >  were  the  owners  of  the 
requisite  proportion  of  the  lands  embraced  within  the  district.  They 
were  also  required  to  ascertain  and  determine  from  evidence  whether 
the  lands  sought  to  be  annexed  to  the  district  were  involved  in  the 
same  system  of  drainage,  and  required  for  outlets  the  drains  of  the 
district.  When  these  facts  were  determined  judicially,  and  not  till 
then,  were  the  commissioners  authorized  by  the  statute  to  enter  their 
order  annexing  said  lands.  PVom  their  decision  no  appeal  was  giv- 
en, nor  were  any  other  means  provided  by  the  statute  for  review- 
ing their  proceedings.  In  every  point  of  view  then  the  case  comes 
within  that  class  of  cases  where  certiorari  is  an  appropriate  remedy. 

But,  as  the  appellants  insist  that  a  different  rule  has  been  an- 
nounced by  this  court  in  various  of  its  decisions,  we  will  briefly 
consider  the  cases  to  which  we  are  referred  as  sustaining  that  con- 
tention. Renwick  v.  Hall,  84  111.  162,  Keigwin  v.  Commissioners, 
115  111.  347,  5  N.  E.  575,  Evans  v.  Lewis,  121  111.  478,  13  N.  E. 
246,  and  Samuels  v.  Commissioners,  125  111.  536,  17  N.  E.  829, 
were  all  cases  in  chancery,  and  it  was  held  that  there  was  no  ju- 
risdiction in  a  court  of  equity,  for  the  reason  that  there  was  a  com- 
plete and  adequate  remedy  at  law,  and  that  the  legal  existence  of 
the  several  corporations  involved  in  those  cases  could  be  determined 
by  an  information  in  the  nature  of  a  quo  warranto.  Trumbo  v. 
People,  75  111.  561,  People  v.  Newberry,  87  111.  41,  Osborn  v.  Peo- 
ple, 103  111.  224,  and  Blake  v.  People,  109  111.  504,  were  proceedings 
for  the  collection  of  either  school  taxes  or  special  assessments,  and 
the  principle  decided  in  those  cases  was  that  the  various  school  dis- 
tricts and  drainage  districts  in  question  in  those  several  suits  were  at 
least  corporations  de  facto,  and  that  the  legality  of  the  organization 


472  RKLIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

of  a  corporation  could  not  be  attacked  collaterally.  Alderman  v.  Di- 
rectors, 91  111.  179,  was  trespass,  and  the  plaintiffs  were  directors 
of  a  de  facto  district;  and  the  same  rule  was  there  declared.  In 
Hinze  v.  People,  92  111.  406,  it  was  held  that  quo  warranto  would 
lie  against  persons  who  assume  to  hold  offices  supposed  to  be  created 
by  a  law  claimed  to  be  invalid  by  reason  of  being  in  contravention 
of  the  Constitution;  and  in  People  v.  Board,  101  111.  308,  40  Am. 
Rep.  196,  it  was  held  that  quo  warranto  also  lies  against  a  corpora- 
tion which  undertakes  to  exercise  powers  which  it  does  not  possess. 

There  is  nothing  decided  in  any  of  these  cases  which  shows  or 
tends  to  show  the  validity  of  either  of  the  propositions  insisted 
upon  by  the  appellants  in  this  case.  All  that  is  determined  by  those 
cases  may  be  admitted,  and  yet  non  constat  that  the  common-law 
writ  of  certiorari  does  not  lie  in  the  present  suit.  No  doubt  some 
expressions  were  used  in  the  opinions  of  several  of  those  cases  from 
which  it  might  be  inferred  that  an  information  in  the  nature  of 
a  quo  warranto  was  the  only  mode  of  testing  the  legality  of  the 
formation  of  an  existing  de  facto  corporation,  but  that  question  did 
not  arise  and  was   not  decided   in  those  cases. 

However,  in  the  case  of  Lees  v.  Commissioners,  135  111.  47,  IG 
N.  E.  915,  it  was  expressly  held  that  the  common-law  writ  of  cer- 
tiorari cannot  be  resorted  to  for  the  purpose  of  determining  whether 
a  corporation  has  a  legal  existence,  and  that  the  validity  of  its  or- 
ganization can  be  questioned  only  by  quo  warranto.  But  there  is 
this  marked  distinction  between  that  case  and  this :  There  the  cor- 
porate existence  itself  of  a  quasi  municipal  body  was  sought  to  be 
challenged  by  certiorari,  while  here  such  existence  is  fully  admit- 
ted, and  the  only  thing  sought  to  be  done  is  to  call  in  question 
the  validity  of  an  order  of  a  municipal  body  admitted  to  be  a  cor- 
poration both  de  facto  and  de  jure,  extending  the  boundaries  of  the 
drainage  district.  It  seems  eminently  proper,  and  in  consonance 
alike  with  the  intention  of  the  statute  and  the  rules  and  analogies 
of  the  common  law,  that  a  proceeding,  the  object  of  which  is  to 
forfeit  or  destroy  that  corporate  life  which  emanates  solely  from 
the  sovereign  power  of  the  state,  should  be  instituted  by  the  attorney 
general  or  state's  attorney  of  the  proper  county.  It  is  said,  in  sec- 
tion 778,  Ang.  &  A.  Corp.,  citing  in  that  behalf  Rex  v.  Pasmore, 
3  Term  R.  244,  245,  and  Regents,  etc.,  v.  Williams,  9  Gill  &  J.  (Md.) 
365,  31  Am.  Dec.  72,  that  "a  quo  warranto  is  necessary  where  there 
is  a  body  corporate  de  facto,  who  take  upon  themselves  to  act  as 
a  body  corporate,  but;  from  some  defect  in  their  constitution,  can- 
not legally  exercise  the  powers  they  affect  to  use."  It  appears, 
however,  from  the  same  section,  and  from  the  authorities  there  cit- 
ed, that  where  there  is  a  legally  existing  corporation,  capable  of 
acting,  which  has  been  guilty  of  an  abuse  of  power,  or  of  its  fran- 
chises, then,  not  only  will  an  information  in  the  nature  of  a  quo 
warranto  lie,  but  scire  facias  as  well. 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF,  473 

Nor  do  we  perceive  an}'-  good  reason  why  a  municipal  body,  which 
has  exceeded  its  jurisdiction  and  has  proceeded  illegally,  may  not, 
on  sound  legal  principles,  be  proceeded  against  by  c[uo  warranto,  by 
scire  facias,  or  by  the  common-law  writ  of  certiorari,  indiiferently,  as 
the  one  or  the  other  may  afford  a  proper  and  sufficient  remedy.  All 
of  tliese  several  writs  are  direct  remedies  afforded  by  the  law,  and. 
in  respect  to  neither  of  them,  can  it  be  said  that  it  is  a  collateral  at- 
tack upon  the  legal  existence  or  organization  of  the  corporation.  As 
has  already  been  suggested,  this  court  has  expressly  held,  in  Miller 
V.  Trustees,  88  fll.  26,  that  the  common-law  writ  of  certiorari  was 
an  appropriate  remedy  to  bring  before  the  circuit  court  for  review 
the  proceedings  of  a  board  of  trustees  of  schools  consolidating  two 
school-districts  into  one;  and  that  seems  to  be  going  quite  as  far, 
if  not  further,  than  is  demanded  by  the  requirements  of  the  present 


ATTORNEY  GENERAL  v.  AIAYOR  AND  ALDERMEN  OF 
NORTHAMPTON. 

(Supreme  Judicial  Court  of  Massachusetts,  1887.     143  Mass.  589,  10 
N.    E.    450.) 

Petition,  filed  April  12,  1886,  by  the  Attorney  General,  at  the 
relation  of  the  civil  service  commissioners  of  the  commonwealth, 
appointed  under  St.  1884,  c.  320,  for  a  writ  of  certiorari  to  quash 
the  proceedings  of  the  respondents  in  the  matter  of  the.  appoint- 
ment of  a  police  officer  of  Northampton,  said  appointment  being 
alleged  to  be  in  violation  of  the  rules  prepared  by  said  commission- 
ers. The  case  was  heard  by  W.  Allen,  J.,  and  reserved  for  the  con- 
sideration of  the  full  court. 

Morton,  C.  J.  We  are  of  opinion  that  the  petitioner  has  mis- 
taken his  remedy  in  this  case.  As  was  stated  by  Chief  Justice  Gray 
in  Locke  v.  Selectmen  of  Lexington,  122  Mass.  290,  "a.  writ  of 
certiorari  lies  only  to  correct  the  errors  and  restrain  the  excesses 
of  jurisdiction  of  inferior  courts  or  officers  acting  judicially."  It 
lies  to  correct  the  errors  of  inferior  courts,  or  judicial  officers,  act- 
ing in  proceedings  not  according  to  the  course  of  the  common  law, 
and  where  errors  cannot  be  corrected  by  appeal,  or  exceptions,  or 
by  a  writ  of  error.     Lynch  v.  Crosby,  134  Mass.  313. 

Thus,  it  is  the  proper  remedy  to  revise  the  proceedings  of  county 
commissioners,  or  of  city  councils,  or  of  boards  of  aldermen,  when 
they  act  in  matters  like  the  laying  out  of  highways,  or  making  as- 
sessments for  sewers  or  other  improvements.  The  reason  is  that, 
in  such  matters,  they  act  judicially,   and  not  merely  as  ministerial 

65  See  Kinsloe  v.  Pogue,  213  111.  302.  72  N.  E.  906  (1904),  removal  of  county 
I       seat;   Moore  v.  City  Council  of  Perrj%  119  Iowa,  423,  93  N.  W.  510  (1903). 


474  RELIEF  AGAINST   ADMINISTRATIVE   ACTION.  (Part   2 

or  executive  officers.  Parks  v.  Boston,  8  Pick.  218,  19  Am.  Dec. 
:522;  Fay,  Petitioner,  15  Pick.  243;  Robbins  v.  Lexington,  8  Cush. 
292 ;  Dwight  v.  City  Council  of  Springfield,  4  Gray,  107 ;  Lowell 
v.  County  Commissioners,  6  Allen,  131 ;  Farmington  River  Water 
Power  Co.  v.  County  Commissioners,  112  Mass,  206 ;  Powers  v. 
City  Council  of  Springfield,  116  Mass.  84;  Snow  v.  Fitchburg,  136 
Mass.  179.  Numerous  other  cases  might  be  cited,  and  they  all  go 
to  show  that  the  uniform  rule  in  this  commonwealth  is,  as  we  have 
stated  above,  that  certiorari  will  only  lie  to  revis.e  the  proceedings 
of  tribunals  or  officers  acting  in  a  judicial  capacity. 

The  appointment  of  police  officers  by  the  municipal  authorities 
of  a  city  cannot  in  any  just  sense  be  called  a  judicial  proceeding. 
It  is  an  important  duty,  and,  like  most  administrative  duties,  in- 
volves the  exercise  of  judgment  and  discretion;  but  it  is  adminis- 
trative, and  not  judicial,  in  its  character.  No  one  has  the  right  to 
be  heard,  and  their  decision  is  not,  within  the  meaning  of  the  law, 
an  adjudication  or  judicial  determination  of  any  question  or  of  the 
rights  of  any  parties.     Opinion  of  Justices,  138  Mass.  601. 

We  are  therefore  of  opinion  that  certiorari  is  not  the  proper  rem- 
edy. In  this  proceeding,  it  would  not  be  in  our  power  to  afford  the 
redress   which   the   petitioner   asks. 

Petition  dismissed. '^'^ 

66  Accord:  People  ex  rel.  McDonald  v.  Bu.sh,  40  Cal.  344  (1870).  But  see 
Wildy  V.  Washburn   (N.  Y.)    16  Jolins.  4&  (1819). 

Compare  People  ex  rel.  Mack  v.  Burt,  170  N.  Y.  620,  63  N.  E.  1121  (1902). 
affirming^  without  opinion  72  N.  Y.  Supp.  567  (1901),  holding  action  of  civil 
service  commissioners  in  classifying  or  not  classifying  places  in  the  civil  serv- 
ice to  be  administrative  and  not  reviewable  by  certiorari,  with  People  ex  rel. 
Sims  V.  Collier,  175  N.  Y.  196,  67  N.  E.  309  (1903),  holding  action  in  rating 
position  as  competitive  or  noncompetitive  to  be  judicial,  and  not  controllable 
by  mandamus.  In  the  latter  case  the  court  says :  "That  such  decisions  are 
reviewable  by  the  courts  must  be  regarded  as  settled,  for  the  question  wheth- 
er competitive  examinations  for  appointment  to  particular  places  are  practi- 
cable or  not  has  been  held  to  be  a  question  of  law,  to  be  decided  In  the 
light  of  the  facts  and  the  evidence  bearing  upon  the  subject." 

"The  board  of  health  did  act,  and  had  a  right  to  act,  upon  its  own  inspec- 
tion and  knowledge  of  the  alleged  nuisance.  It  was  not  obliged  to  hear  any 
party.  It  could  obtain  Its  information  from  any  source  and  in  any  way,  and 
hence  its  determination  upon  the  question  of  nuisance  is  not  reviewable  by 
certiorari."  People  ex  rel.  Copcutt  v.  Board  of  Health  of  City  of  Yonkers,  140 
N.  Y.  1,  10,  35  N.  E.  320,  323,  23  L.  R.  A.  481,  37  Am.  St.  Rep.  522  (1893). 

So,   also,   Hartman   v.   Wilmington,    1   Marv.   (Del.)   215,   41  Atl.   74   (1894). 

Selection  of  site  for  institution  illegally  delegated  to  committee  of  super- 
visors not  reviewable  on  certiorari.  People  v.  Supervisors  of  St.  Lawrence 
Co.,  25  Hun  (N.  Y.)   131  (1881). 

Certiorari  to  review  action  of  railroad  commission,  see  People  ex  rel. 
Loughran  v.  Railroad  Commissioners,  158  N.  Y.  421,  53  N.  E.  103  (1^9), 
consent  to  discontinuance  of  station ;  People  ex  rel.  Steward  v.  Board  of 
Railroad  Commissioners,  100  N.  Y.  202,  54  N.  E.  697  (1890),  consent  to  build- 
ing railroad. 


Ch.  8)  ACTIONS   FOR  SPECIFIC   RELIEF.  475 


SECTION  58.— SAME— SCOPE  OF  REVIEW;   WHAT  KINDS 
OF  ERROR  CORRECTED 


JACKSON  V.  PEOPLE. 

(Supreme  Court  of  Michigan,  1860.     9  Micli.  Ill,  77  Am.  Dec.  491.) 

Certiorari  to  the  recorder's  court  of  the  city  of  Detroit,  where 
Jackson  was  convicted  on  a  complaint  for  obstructing  an  alley  in 
said  city.     *     *     ^' 

Campbell,  J.*^^  The  first  question  which  arises  is,  how  far  are  we 
at  liberty  to  look  into  the  proceedings  returned  by  the  recorder's 
court,  to  ascertain  whether  the  recorder  erred  in  any  respect  within 
our  supervisory  control? 

It  is  claimed  on  behalf  of  the  people  that,  upon  a  certiorari  at  com- 
mon law,  the  only  thing  to  be  determined  is  whether  the  court  be- 
low had  jurisdiction,  and  that  if  jurisdiction  existed  the  discretion- 
ary power  of  the  court  cannot  be  inquired  into.  And  it  is  further 
claimed  that  the  jurisdiction  depends  upon  the  subject-matter  of  the 
complaint.  Applying  this  rule  to  the  case  before  us,  it  is  insisted 
that  the  recorder's  court  has  jurisdiction  of  all  complaints  for  ob- 
structing alleys,  and  that,  this  jurisdiction  being  called  into  exercise 
by  such  a  complaint,  its  proceedings  thenceforth  are  not  examinable 
unless  an  unauthorized  judgment  is  given  beyond  the  one  allowed  by 
law.  As  the  same  immunity  from  review  applies  to  all  special  tri- 
bunals not  acting  according  to  the  course  of  the  common  la"W,  it 
becomes  very  important  to  ascertain  how  far  this  doctrine  is  cor- 
rect; for,  if  true,  it  certainly  gives  them  an  extent  of  authority 
over  persons  and  property  not  possessed  by  any  of  the  higher  courts. 

There  are  certain  classes  of  questions  which,  by  the  common  un- 
derstanding from  time  immemorial,  belong  to  the  course  of  judicial 
inquiry  under  the  laws  of  the  land.  The  common  law,  and  the  va- 
rious charters  and  bills  of  rights,  recognized  and  assured  the  right 
to  such  an  inquiry.  And  the  Constitiition  of  this  state,  in  appor- 
tioning the  judicial  power,  as  well  as  in  affirming-  the  immunity  of 
life,  liberty  and  property,  has  always  been  understood  to  guarantee 
to  each  citizen  the  right  to  have  his  title  to  property  and  other  legal 
privileges  determined  by  the  general  tribunals  of  the  state.  These 
municipal  courts,  so  far  as  they  act  under  city  by-laws,  are  not  de- 
signed to  decide  between  man  and  man,  or  to  administer  general 
laws.  They  are  ordained  to  prevent  disorder  in  matters  of  local 
convenience,  and  to  regulate  the  use  of  public  and  quasi  public 
easements  so  as  to  prevent  confusion.     If,  in  exercising  this  power, 

6  7  Only  a  portion  of  this  case  is  printed. 


476  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

they  can  incidentally  decide  upon  the  rights  of  private  property,  so 
as  to  determine  its  enjoyment  without  review,  there  would  seem  to 
be  a  practical  annihilation  of  the  right  to  resort  to  the  general  tri- 
bunals and  the  common  law.  The  consequences  of  such  a  doctrine, 
whether  correct  or  incorrect,  are  serious  enough  to  render  it  our 
duty  to  examine  very  carefully  into  its  foundations. 

The  power  of  reviewing  upon  certiorari  judicial  proceedings  of 
inferior  tribunals  and  bodies  not  according  to  the  course  of  the  com- 
mon law  has  long  been  exercised  in  England,  as  well  as  in  this 
country.  The  power  has  been  jealously  maintained,  and  has  been 
deemed  necessary  to  prevent  oppression.  It  must  be  apparent  to 
any  one  that  if  the  superior  court  could  only  examine  into  the  right 
of  the  inferior  one  to  enter  upon  an  inquiry,  without  reference  to 
the  manner  in  which  that  inquiry  is  conducted,  this  remedy  would 
be  of  small  account. 

In  New  York,  a  series  of  decisions  have  appeared  from  time  to 
time,  asserting  that  when  certiorari  is  given  by  statute  it  lies  to 
correct  any  legal  mistakes,  but  where  issued  as  at  common  law  it 
can  only  review  the  jurisdiction  of  the  court  below.  It  is  unneces- 
sary to  refer  particularly  to  these  authorities,  inasmuch  as  in  More- 
wood  V.  Hollister,  6  N.  Y.  309,  this  distinction  seems  to  be  regarded 
as  unfounded,  and  the  office  of  the  writ  is  considered  as  reaching  all 
errors  of  law.  We  have  examined  with  much  care  all  the  English 
authorities  within  reach  bearing  upon  this  subject,  and  have  found 
nothing  whatever  to  give  color  to  such  a  distinction.  There  are, 
indeed,  cases  where  a  certiorari  lies  to  examine  errors  generally, 
and  others  where  it  lies  only  to  inquire  into  the  jurisdiction;  but 
the  distinction  arises  out  of  very  different  considerations.  This  \\\\\ 
appear  by  reference  to  some  of  the  cases  in  which  questions  of  ju- 
risdiction  have  been    reviewed. 

There  are  many  statutes  in  England  which,  not  only  in  large 
classes  of  summary  convictions,  but  also  in  special  proceedings  for 
condemning  lands,  and  for  other  purposes,  take  away,  in  express 
terms  or  by  acknowledged  implication,  the  right  to  a  certiorari,  which 
otherwise  existed.  In  some  cases  an  appeal  lies  to  review  the  whole 
proceeding;  in  others,  it  is  subject  to  no  further  examination  on  the 
merits.  In  all  these  cases  it  is  held  that  a  statute  taking  away  the 
right  to  a  certiorari  does  not  deprive  the  aggrieved  party  of  the 
right  to  sue  out  such  a  writ  where  the  proceeding  has  been  with- 
out jurisdiction.  And  the  want  of  jurisdiction,  when  arising  from 
matters  not  appearing  in  any  way  on  the  proceedings,  may  even  be 
shown  aliunde  by  the  affidavits.  8  Ad.  &  El.  413;  11  Ad.  &  El. 
194;  5  B.  &  C.  816;  10  B.  &  C.  477;  5  Ad.  &  El.  626;  2  Man. 
&  Ry.  397;    13  Q.  B.  988;    15  Q.  B.  121.     *     *     * 

If  certiorari  will  lie  for  want  of  jurisdiction  in  cases  where  the 
common-law  remedy  of  certiorari,  in  its  usual  acceptation,  is  express- 
ly or  confessedly  taken  away,  it  follows  as  an  unavoidable  conclu- 


Ch.  8)  ACTIONS   FOR  SPECIFIC   RELIEF.  477 

sion  that  the  usual  oftice  of  the  common-law  writ  is  to  inquire  in- 
to something  more  than  jurisdiction.  This  may  be  made  more  plain  by 
examining  what  is  required  to  be  returned. 

It  was  held  in  Rex  v.  Killett,  4  Burr.  2003,  that  it  is  necessary 
to  set  out  the  evidence  upon  a  conviction,  that  the  court  may  judge 
whether  the  justices  have  done  right. ''^  And  in  Rex  v.  Read,  2 
Doug.  486,  it  was  held  that  a  conviction  is  bad  unless  it  does  set 
forth  the  evidence.  The  same  doctrine  is  laid  down  in  Rex  v.  Clarke, 
8  T.  R.  220;  Rex  v.  Smith,  8  T.  R.  588;  Regina  v.  Tuck,  10  Q. 
B.  540.  And  where  the  evidence  set  out  is  not  sufficient  to  justify 
a  conviction,  or  other  judicial  act  complained  of,  it  will  be  quashed 
on  certiorari.  8  T.  R.  588 ;  3  B.  &  Aid.  596 ;  2  Chit.  578 ;  Cowp. 
728;  2  B.  &  Aid.  378;  6  T.  R.  177;  4  Ad.  &  El.  216;  4  Ad.  & 
El.  205;    3  O.  B.  790. 

The  office  of  a  certiorari  is  not,  however,  to  review  questions  of 
fact,  but  questions  of  law.  And  in  examining  into  the  evidence 
the  appellate  court  does  so,  not  to  determine  whether  the  probabili- 
ties preponderate  one  way  or  the  other,  but  simply  to  determine 
whether  the  evidence  is  such  that  it  will  justify  the  finding  as  a 
legitimate  inference  from  the  facts  proved,  whether  that  inference 
would  or  would  not  have  been  drawn  by  the  appellate  tribunal.  It 
is  said  in  The  King  v.  Daman,  2  B.  &  Aid.  378,  that  "all  the  facts 
necessary  to  subject  the  party  to  the  penalty  imposed  by  the  act  of 
Parliament  must  appear  upon  the  information,  and  be  established 
by  proof."  And  in  The  King  v.  Davis,  6  T.  R.  177,  it  is  said :  "It 
is  sufficient  in  convictions  if  there  were  such  evidence  before  the 
magistrates  as  in  an  action  would  be  sufficient  to  be  left  to  a  jury." 
The  same  principles  are  recognized  in  the  other  cases  above  cited ; 
also  in  Rex  v.  Glossop,  4  B.  &  Aid.  616,  and  Regina  v.  Bolton,  1 
O.  B.  67. 

Where  facts  exist  which,  if  apparent,  would  have  ousted  the  ju- 
risdiction, they  have  been  allowed  to  be  set  forth  in  the  affidavits 
of  the  relator,  and  a  response  required.  Instances  of  this  occur 
where  the  magistrate  acting  was  disqualified  by  interest  or  other 
similar  cause.  1  Q.  B.  67;  1  Q.  B.  467;  6  Q.  B.  753.  And  in 
Regina  v.  Gillyard,  12  Q.  B.  527,  a  conviction  was  quashed,  although 
perfectly  regular,  because  it  was  made  to  appear  that  it  was  obtain- 
ed  fraudulently. 

The  same  principles  which  require  a  conviction  to  be  quashed^ 
when  upon  the  facts  and  the  law  applicable  to  them  the  case  is  in- 
sufficient to  justify  it  would  seem  to  require  that  rulings  of  law 
upon  the  admission  or  exclusion  of  evidence  should  be  reviewed. 
And  such  we  find  to  have  been  the  practice.  In  the  case  of  Regina 
V.   Cheltenham   Com'rs,   1    Q.   B.   467,  the   rate  complained  of   was 

68  The  ca.se  adds:  "But  upon  an  order  it  is  not  necessary,  because  the 
court  will  presume  that  they  have  done  right." 


478  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

quashed  because  certain  interested  magistrates  voted  upon  the  ad- 
mission of  evidence,  the  court  holding  this  a  decision  which  might 
have  had  an  important  influence  upon  the  result,  and  therefore  suffi- 
cient to  avoid  the  .whole  action,  whether  the  interested  magistrates 
took  any  further  part  or  not.  And  in  this  case  the  statute  had  ex- 
pressly taken  away  the  writ  of  certiorari ;  and  it  was  issued,  and  the 
case  decided,  on  the  ground  that  the  question  from  its  bearing-  be- 
came one  of  jurisdiction.  And  in  Regina  v.  Justices  of  Hertford- 
shire, 6  Q.  B.  754,  the  proceedings  were  quashed  because  an  inter- 
ested magistrate  had  sat  during  a  portion  of  them,  although  he  with- 
drew before  they  were  completed.  The  questions  of  law  arising 
either  upon  the  admission  of  evidence,  or  the  other  rulings  in  the 
proceedings,  must  always  have  a  bearing  on  the  result,  and  the 
appellate  court  cannot,  generally,  at  least,  assume  that  any  of  them 
have  not  contributed  to  it.  In  Regina  v.  Justices  of  Staffordshire. 
30  Eng.  L.  &  Eq.  402,  where  certiorari  was  expressly  taken  away 
by  statute,  a  writ  was  allowed,  and  a  conviction  tmder  a  local  by- 
law quashed,  because  the  justices  had  ruled  that  an  approval  of  the 
by-law  by  the  Secretary  of  State  made  it  binding,  and  therefore 
refused  to  consider  its  validity.  The  Court  of  Queen's  Bench  held 
the  by-law  invalid,  and  so  quashed  the  conviction. 

We  are  therefore  of  opinion  that  the  return  to  the  certiorari  is 
all  properly  before  us,  and  that  the  law  contemplates  that  it  shall 
be  full,  both  upon  the  evidence  and  upon  the  decisions  and  rul- 
ings.    *     *     *  *^® 


PEOPLE  ex  rel.  CITIZENS'  GAS  LIGHT  CO.  OF  BROOKLYN 
V.  BOARD  OF  ASSESSORS  OF  CITY  OF  BROOKLYN. 

(Court  of  Appeals  of  New  York,  1808.     39  N.   Y.  83.) 

Mason,  J.""  *  *  *  The  office  of  tiiis  writ  of  certiorari,  when 
issued  out  of  the  Supreme  Court  to  review  the  proceedings  and  de- 
termination of  inferior  tribunals,  has  fixed  limits  that  may  be  re- 
garded as  settled  by  the  adjudged  cases  in  this  state,  although  it 
must  be  conceded  that  there  is  great  conflict  in  tire  decisions  when 
we  get  beyond  a  certain  point  in  the  functions  of  the  writ.  I  think 
we  may  safely  say  that  the  following  rule  may  be  deduced  from  ad- 
judged cases  in  this  state,  viz.:  That  its  office  extends,  unques- 
tionably, to  the  review  of  all  questions  of  jurisdiction,  power  and 
authority  of  the  inferior  tribunal  to  do  the  acts  complained  of,  and 
all  questions  of  regularity  in  the  proceedings ;  that  is,  all  questions 
whether  the  inferior  tribunal  has  kept  within  the  boundaries  pre- 
fix That  a  provision  tailing  away  certiorari  does  not  apply  where  there  is 
a  clear  absence  of  jurisdiction,  see  Ex  parte  Bradlaugh,  3  Q.  B.  D.  509  (1878). 
7  0  Only  a  portion  of  the  opinion  of  Mason,  J.,  is  printed. 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  479 

scribed   for  it  by  the  express  terms  of  the  statute  law  or  by  well- 
settled   principles   of   the  common    law.     *     *     * 

I  cannot  assent  to  the  proposition  that   when  the  Supreme  Court 
have  issued  the  writ,  heard  the  case  upon  the  return,  and  have  com- 
mitted a  plain  error  in  law,  and   have  come  to  the  conclusion,   er- 
'     roneously,   as  in  this   case,  that  the  assessors  have  kept  within   the 
boundaries   prescribed  by   the    statutes,   and   therefore   hold  that   the 
relators  can  take  nothing  by  the  writ,  and  give  judgment  quashing 
the  writ — that  such  judgment  is  not  subject  to  review  in  this  court. 
The  judgment  of  the  Supreme  Court,  in  such  a  case,  is  not  rendered 
j     upon  the  ground  that  the  proceedings  ought  not  to  be  reviewed  by 
i     the  writ,  or  that  it  was  improvidently  issued,  but  upon  the  ground 
that  the  allegations  of  error  have  not  been  sustained   in   the  given 
case.     Since   the   decision  of   the    several   suits  growing  out   of   the 
I     tax  assessments  in  the  city  of  Poughkeepsie,  ''^   there   is  no  redress 
I     to  the  citizen  against  illegal  assessments  like  this,  if  it  is  not  afforded 
'     upon  this  common-law  writ  of  certiorari,  which  it  certainly  can  be, 
!     so  far  as  to  require  the  assessors  to  keep  within  the  rules  of  law, 
j     and  comply  with  terms  prescribed  by  the   statute.     *     *     =•'  '- 


PEOPLE  ex  rel.  BODINE  v.  GOODWIN  et  al. 

(Court  of  Appeals  of  New  York,  1851.     5  N.  T.  568.) 

RuGGLES,  C.  J.^^  Neither  the  commissioners  of  highways,  nor  the 
referees  on  appeal  from  their  decision,  have  power  to  lay  out  a  road 
public  or  private  through  any  building  without  the  consent  of  the 
owner.  1  Rev.  St.  p.  502,  §  3.  and  page  513,  §  57.  There  was  a 
barn  standing  on  the  land  laid  out  for  the  highway  in  controversy ; 
and  unless  the  owner's  consent  was  given  that  the  highway  should 
be  so  laid  out,  the  referees  in  laying  it  out  acted  without  authority, 
and  their  proceedings  were  void  for  want  of  jurisdiction.  Clark  v. 
Phelps,  4  Cow.  190.  Inferior  magistrates,  when  required  by  writ  of 
certiorari  to  return  their  proceedings,  must  show  affirmatively  that 
they  had  authority  to  act ;  and  where,  as  in  the  present  case,  their 
authority  and  jurisdiction  depend  upon  a  fact  to  be  proved  before 
themselves,  and  such  fact  be  disputed,  the  magistrate  must  certify 
\  I  the  proofs  in  relation  to  it,  for  the  purpose  of  enabling  the  higher 
court  to  determine  whether  the  fact  be  established.  The  decision 
of  the  magistrate  in  relation  to  all  other  facts  is  final  and   conclu- 

71  See  Foster  v.  Van  Wyck,  2  Abb.  Dec.  (N.  Y.)  167  (1867),  denying  rem- 
edy against  the  assessors  and  collector,  and  Swift  v.  Poughkeepsie,  37  N.  Y. 
511  (1867),  denying  remedy  against  the  city  on  implied  contract. 

7  2  See  Milwaukee  Iron  Co.  v.  Schubel,  29  AYis.  444,  9  Am.  Rep.  591  (1872). 

''3  Only  a  portion  of  the  opinion  of  Ruggles,  C.  J.,  is  printed. 


4S0  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part   2 

sive,  and  will  not  be  reviewed  on  a  common-law  certiorari/*  But 
the  main  object  of  this  writ  being  to  confine  the  action  of  inferior 
officers  within  the  limits  of  these  delegated  powers,  the  reviewing 
court  must  necessarily  re-examine,  if  required,  the  decision  of  the 
magistrate  on  all  questions  on  which  his  jurisdiction  depends,  wheth- 
er of  law  or  of  fact.  The  evidence,  therefore,  to  prove  the  consent 
of  the  owner  of  the  land  to  the  laying  out  of  the  road,  was  properly 
stated  on  the  return,  and  is  properly  examinable  here.     *     *     *  ^^ 


PEOPLE  ex  rel.  COOK  v.  BOARD  OF  POLICE  OE  METRO- 
POLITAN POLICE  DISTRICT  OF  STATE  OF 
NEW  YORK. 

(Court  of   Appeals   of   New  York,    18GS.     39   N.   Y.    50G.) 

Appeal  from  judgment  of  the  Supreme  Court  in  General  Term 
of  the  First  District,  affirming  a  judgment  of  the  Special  Term  on 
certiorari,  by  which  a  judgment  or  order  of  the  appellants,  impos- 
ing a  fine  upon  the  relator,  was  reversed  and  annulled. 

The  relator  was  a  member  of  the  police  force  of  the  Metropolitan 
police  district,  and  patrolman  of  the  Ninth  precinct,  and  it  appeared 
by  the  return,  that,  on  the  19th  of  January,  1863,  a  charge  of  neg- 
lect of  duty  was  preferred  against  him,  the  specification  of  which  was 
absence  from  duty,  and  from  the  station  house  of  the  Ninth  pre- 
cinct, from  October  26,  1861,  to  the  8th  day  of  January,  1863— a 
period  of  439  days.  Upon  this  he  was  tried  by  the  appellants,  and, 
on  the  14th  of  February,  1863,  the  judgment  of  the  board  was  pro- 
nounced, whereby  they  find  him  guilty  of  the  matters  charged,  and 
therefore  order  and  adjudge  that  he  be  fined  the  amount  of  439 
days'  pay,  and  that  his  pay  for  that  number  of  days  be,  and  the  same 
is,  hereby  forfeited. 

In  obedience  to  the  precept  of  the  certiorari,  the  return  of  the 
appellants  set  out  the  charge,  the  notice  thereof  to  the  relator,  and 
the  requirement  to  appear  and  answer,  and  notice  of  the  time  and 
place  of  trial,  the  relator's  written  admission  of  due  personal  serv- 
ice upon  him  of  the  complaint,  charges,  specifications  and  notice  of 
trial,  and  also  the  testimony  and  proofs  taken  on  the  trial,  certain 

'*See,  however,  People  v.  Board  of  Police,  39  N.  Y.  506  (18G8),  post, 
P-    480. 

75  Accord:  Whitney  v.  Board  of  Delegates,  14  Cal.  479,500  (1860);  Stumpf 
V.  Board  of  Sup'rs,  131  Cal.  364.  &3  Puc.  063,  82  Am.  St.  Rep.  350  (1901); 
Stone  V.  Miller,  60  Iowa,  243,  14  N.  W.  781  (1882). 

Contra:  Chicago  &  Rock  Island  R.  Co.  v.  Whipple,  22  111.  105.  108  (1859): 
"It  is  not  the  practice  to  ascertain  from  extrinsic  evidence  whether  the  in- 
ferior court  had  jurisdiction  or  had  proceeded  according  to  law.  but  to  de- 
termine these  questions  by  the  record."  Whittaker  v.  Venice,  150  111.  195, 
203,  37  N.  E.  240  (1894). 


Cll.  8)  ACTIONS   FOR  SPECIFIC   RELIEF.  481 

of  the  rules  and  regulations  of  the  appellants,  with  the  finding  and 
judgment  of  the  appellants,  convicting  him  of  the  charge,  and  im- 
posing the  fine.  The  case  is  certified  to  have  closed  on  the  10th  of 
February;    the  judgment  was  rendered  on  the  14th. 

Woodruff,  J.^"  The  board  of  police  for  the  Metropolitan  dis- 
trict had  jurisdiction  of  the  subject-matter  of  the  charge,  of  the 
charge  itself,  and  of  the  person  of  the  relator  who  appeared  on  the 
trial  before  them.  It  is  not  objected  that  the  judgment  is  not  such 
as,  upon  due  conviction,  they  had  authority  to  pronounce  and  carry 
into  efifect. 

The  question  thereupon  arises,  which  I  think  the  principal  ques- 
tion on  this  appeal,  may  the  court,  on  a  common-law  certiorari,  go 
beyond  the  inquiry  whether  the  inferior  tribunal  had  jurisdiction, 
and  was  the  proceeding  and  judgment  within  that  jurisdiction?  Oth- 
er questions,  it  is  true,  were  raised  and  discussed ;  but,  in  the  view 
that  I  take  of  the  case,  it  will  be  unnecessary  to  consider  them. 
Some  of  them,  in  my  judgment,  are  mere  questions  of  form  or  prac- 
tice, which  are  clearly  not  open  to  review. 

It  is  insisted  that,  on  the  trial,  there  was  no  evidence  that  the  re- 
lator was  guilty  of  the  ofifense  charged ;  that  the  actual  facts  were 
undisputed;  that  the  alleged  neglect  of  duty,  and  the  only  neglect 
of  duty  in  any  wise  appearing,  was  his  absence  during  the  period 
of  his  dismissal  from  the  force ;  and  that  it  was  error  in  law  to  hold 
that  an  offense,  and  convict  and  pronounce  judgment  thereupon. 

If,  as  insisted  by  the  appellants,  the  court  cannot,  on  certiorari, 
look  into  the  evidence,  nor  the  rulings  thereupon,  with  a  view  to 
the  correction  of  errors  in  law  committed  on  the  trial,  then  the  particu- 
lar facts  upon  which  the  finding  of  guilty  was  based  cannot  be  consid- 
ered. Jurisdiction  appearing,  and  the  judgment  being  within  that  ju- 
risdiction, the  judgment  is  to  be  deemed,  on  this  certiorari,  conclusive. 
It  has  often  been  said  that  a  common-law  certiorari  brings  up  the  rec- 
ord only,  and  not  the  evidence,  which  forms  no  part  of  the  record,  and, 
if  so,  then  the  circumstance  that,  in  the  particular  case,  the  inferior  tri- 
bunal was  required  by  the  writ  to  return,  and  did  return,  the  evidence, 
does  not  enlarge  the  field  of  review,  or  bring  any  other  than  juris- 
dictional questions   under   examination. 

That  this  is  the  extent  and  limit  of  the  review  by  a  common-law 
certiorari  was  many  times  stated  in  the  former  Supreme  Court,  and 
has  been  often  stated  in  the  present  Supreme  Court.  *  *  *  jt 
Avould  be  idle  to  attempt  to  harmonize  the  various  decisions  and  dicta 
above  referred  to.     *     *     * 

It  is  true  that  the  court  in  the  later  cases  has  taken  a  more  liberal 
view  of  the  office  of  a  common-law  certiorari,  and  the  power  of  re- 
view thereby,  than  was  expressed  by  the  Supreme  Court  during  many 

7  6  Only  a  portion  of  the  opinion  is  printed. 
Fr.Adm.Law — 31 


482  BELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

vears.  *  *  *  My  own  conviction  of  the  importance  of  the  ques- 
tion, in  view  of  the  great  number  of  proceedings  of  a  summary  char- 
acter in  which  powers  are  exercised  which  affect  vaKiable  rights  both 
of  person  and  property,  has  led  me  to  collect  and  compare  the  more 
l)rominent  cases  on  this  subject;  and  I  cannot  resist  the  belief  that  a 
disposition  has  been  manifested  to  limit  the  office  of  this  most  use- 
ful writ  within  too  narrow  limits. 

Let  it  be  once  established  that  where  an  officer  or  board  of  officers 
have  jurisdiction  of  the  subject  or  of  the  persons  to  be  affected,  and 
proceed  in  its  exercise  according  to  the  prescribed  mode  or  forms, 
their  determination  is  final  and  beyond  the  reach  of  any  review,  what- 
ever errors  in  law  they  may  commit,  and  however  clear  it  may  be  upon 
undisputed  facts  that  their  judgment,  decision  or  order  is  not  war- 
ranted, and  there  is  danger  that  much  of  injustice  and  wrong  may 
happen  without  possibility  of  redress. 

On  the  other  hand,  to  hold  that  conclusions  of  fact  upon  conflicting 
evidence  and  matters  of  mere  detail,  in  the  order  or  mode  of  proceed- 
ing, not  violating  any  rule  of  law  to  the  prejudice  of  the  party,  and 
matters  which  are  clearly  submitted  to  the  judgment  or  discretion  of 
the  inferior  tribunal,  where  the  evidence  presents  a  case  for  its  exer- 
cise, can  be  so  reviewed,  would  be  in  conflict  with  all  of  the  previous 
adjudications,  and  produce  great  inconvenience  and   embarrassment. 

It  may  be  desirable  not  to  multiply  cases  in  which  the  appellate 
courts  can  be  called  upon  to  interfere  in  matters  of  small  importance, 
but  that  furnishes  no  reason  for  denying  the  power  to  see  that  the 
rules  of  law  are  not  violated,  when  wrong  is  done,  and  no  great 
public  inconvenience  will   result  from  its  exercise. 

I  conclude,  therefore,  that  in  the  case  before  us  the  Supreme  Court 
-y_.had  power,  and  that  on  this  appeal  this  court  have  power,  to  examine 
'  the  case  upon  the  whole  of  the  evidence,  to  see  whether,  as  a  matter 
of  law,  there  was  any  proof  which  could  warrant  a  conviction  of  the 
relator,  of  the  charge  of  neglect  of  duty,  by  absence  from  duty  as  a 
patrolman  of  the  Ninth  precinct,  from  the  26th  of  October,  1861,  to 
the  8th  of  January,  1863. 

If  there  was  no  evidence  of  neglect  of  duty — if  the  case  was  such  at 
the  close  of  the  trial  that  it  would  have  been  erroneous  to  submit 
the  question  to  the  jury,  were  the  like  question  before  a  jury  in  an 
ordinary  action — then  the  error  is  an  error  in  law,  and  the  conviction 
was  illegal.  It  rests  upon  no  finding  of  facts  upon  evidence  tending 
to  sustain  such  finding;  but  as  matter  of  law  the  relator  was  entitled 
to  be  acquitted  of  the  charge.     *     *     *  ^^ 

7  7  Accord:  Milwaukee  Iron  Co.  v.  Schubel,  29  Wis  444,  9  Am.  Rep.  591 
(1872). 
Arnoux,  J.,  in  Matter  of  Lauterjung,  48  N.  Y.  Super.  Ot.  308.  (1882),  said: 
"Until  the  decision  of  tlie  Court  of  Appeals  in  tlie  year  1868,  in  the  ease 
of  People  ex  rel.  Cook  v.  Board  of  Police,  39  N.  Y.  506  [in  which  Judge  Ar- 
noux was  counsel  for  the  relator],  the  tendency  of  the  courts  in  certiorari 
cases  was  to  refuse  to  examine  into  the  evidence  or  to  determine  any  ques- 


Ch.  8)  ACTIONS   FOR  SPECIFIC   RELIEF.  483 

NEW  YORK  CODE  OF  CIVIL   PROCEDURE,   §§   2122,   2U0, 

2141. 

Sec.  2122.  Except  as  otherwise  expressly  prescribed  by  a  statute, 
I    a  writ  of  certiorari  cannot  be  issued  in  either  of  the  following  cases : 

1.  To  review  a  determination  which  does  not  finally  determine  the 
rights  of  the  parties,  with  respect  to  the  matter  to  be  reviewed ; 

2.  Where  the  determination  can  be  adequately  reviewed,  by  an  ap- 
peal to  a  court  or  to  some  other  body  or  officer ; 

3.  Where  the  body  or  officer  making  the  determination  is  express- 
I  ly  authorized  by  statute  to  rehear  the  matter,  upon  the  relator's  ap- 
I    plication;   unless  the  determination  to  be  reviewed  was  made  upon  a 

rehearing,  or  the  time  within  which  the  relator  can  procure  a  rehear- 
ing has  elapsed. 

Sec.   2140.  The  questions,   involving  the  merits,  to  be  determined 
'   by  the  court  upon  the  hearing,  are  the  following,  only : 
I       1.  Whether  the  body  or  officer  had  jurisdiction  of  the  subject-mat- 
I   ter  of  the  determination  under  review ; 

'  2.  Whether  the  authority,  conferred  upon  the  body  or  officer,  in 
relation  to  that  subject-matter,  has  been  pursued  in  the  mode  required 
by  law,  in  order  to  authorize  it  or  him  to  make  the  determination ; 
i  3.  Whether  in  making  the  determination,  any  rule  of  law,  affecting 
1  the  rights  of  the  parties  thereto,  has  been  violated,  to  the  prejudice 
j  of  the  relator ; 

\      4.  Whether  there  was  any  competent  proof  of  all  the  facts,  neces- 
sary to  be  proved,  in  order  to  authorize  the  making  of  the  determina- 
;  tion ; 

j  5.  If  there  was  such  proof,  whether  there  was,  upon  all  the  evi- 
;;  dence,  such  a  preponderance  of  proof,  against  the  existence  of  any  of 
,  those  facts,  that  the  verdict  of  a  jury,  affirming  the  existence  there- 
I  of,  rendered  in  an  action  in  the  Supreme  Court,  triable  by  a  jury, 
j  would  be  set  aside  by  the  court,  as  against  the  weight  of  evidence. 
j  Sec.  2141.  The  court,  upon  the  hearing,  may  make  a  final  order, 
'annulling  or  confirming,  wholly  or  partly,  or  modifying,  the  determi- 
nation reviewed,  as  to  any  or  all  of  the  parties.''* 

;tion  beyond  that  of  jurisdiction.  Tliis  permitted  inferior  tribunals  and  magis- 
jtrates  to  exercise  their  powers  in  an  arbitrary,  high-handed  and  unjusti- 
fiable manner,  and  made  them  more  absolute  than  any  court  of  original  ju- 
'risdiction.  The  case  above  cited  brought  to  the  attention  of  the  court  an 
^illustration  of  the  despotic  action  that  such  boards  may  take  when  beyond 
the  reach  of  review.  *  *  *  There  able  counsel  contended  that  the  court 
was  bound  by  the  record.  This  question  was  examined  with  exhaustive  re- 
search by  that  distinguished  ornament  of  the  bench,  the  late  Judge  Wood- 
ruff, and  the  able  opinion  that  he  wrote,  unanimously  concurred  in  by  the 
other  judges  of  the  court,  marks  a  new  departure  in  the  law  relating  to 
[certiorari  in  this  state." 
i    7  8  See  People  ex  rel.  McAleer  v.  French,  119  N.  Y.  ,j02,  507,  508,  23  X.  E. 

iioei  (181X)). 

'    As  to  certiorari  in  connection  with  taxation,  under  statute,  see  People  ex 


484  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

DOLAN'S  APPEAL. 

(Supreme  Court  of   Pennsylvania,   1885.     108  Pa.   5G4.) 

This  was  an  appeal  and  certiorari  taken  by  James  Dolan  from  an 
order  of  said  court  revoking  a  license  duly  granted  to  him  to  sell  in- 
toxicating liquors. 

Mr.  Justice  SterrETT  delivered  the  opinion  of  the  court. 

It  appears  from  the  docket  entries  of  the  court  below  that  on  March 
10,  1884,  James  Dolan  was  licensed  to  keep  a  hotel,  and  on  the  17th 
of  the  same  month  he  was  ruled  "to  show  cause  why  the  license 
granted  to  him  should  not  be  revoked."  Service  of  the  rule  was  duly 
accepted  by  his  attorney,  testimony  was  taken,  and  the  case  set  down 
for  argument.  After  several  continuances,  it  was  heard  and  held 
under  advisement,  and  on  May  27th  the  rule  to  show  cause,  etc.,  was 
made  absolute.  On  the  following  day  Dolan  made  affidavit,  entered 
into  recognizance  with  sureties,  etc.,  and  appealed  from  the  order  of 
court  revoking  his  license.  A  few  days  thereafter  a  writ  of  certio- 
rari, to  remove  the  record,  was  received  and  filed.  With  the  exception 
of  the  original  petition  for  license,  the  foregoing  is  a  correct  sum- 
mary of  the  facts  exhibited  by  the  record  presented  to  us  for  review. 

It  is  scarcely  necessary  to  say  that  no  appeal  is  given  in  such  cases, 
and,  if  it  were  not  for  the  fact  that  we  may  review  the  proceeding  on 
the  writ  of  certiorari,  the  case  might  be  summarily  disposed  of  by 
quashing  the  appeal. 

In  considering  the  case  on  the  certiorari,  we  are  necessarily  re- 
stricted to  what  appears  on  the  face  of  the  record  proper.     If  mani- 

rel.  Manhattan  R.  Co.  v.  Barker,  152  N.  Y.  417,  46  N.  E.  875  (1897),  and  an 
article  by  Julian  T.  Davies,  1  Columbia  Law  Review,  p.  419. 

"Here  we  must  take  note  of  the  difference  between  jurisdictional  error  as 
to  a  court  proceeding  according  to  the  course  of  the  common  law  and  such 
error  as  to  a  mere  tribunal  exercising  quasi  judicial  authority.  In  the  form- 
er, jurisdiction  of  the  party  and  subject-matter  being  established,  the  de- 
termination cannot  be  successfully  challenged  for  such  error,  though  the 
basic  questions  of  fact  rest  upon  insufficient  evidence,  or  have  no  founda- 
tion whatever  therein.  The  judgment  in  such  circumstances  may  be  errone- 
ous, but  not  reversible  upon  writ  of  certiorari  for  jurisdictional  defect.  In 
the  latter,  a  clear  violation  of  law  in  reaching  a  result  within  the  power 
of  the  tribunal  to  reach  proceeding  properly  is  jurisdictional  error.  In  the 
former,  the  evidence  is  not  reviewable  at  all.  In  the  latter,  it  may  be  re- 
viewed, but  only  to  the  extent  of  determining  whether  there  is  evidence  up- 
on which  the  tribunal  could  reasonably  and  honestly  have  reached  the  con- 
clusion which  it  did.  The  evidence  cannot  be  weighed  for  the  purpose  of 
determining  whether  the  same  clearly  preponderates  against  the  decision. 
It  may  be  looked  into  only  to  see  whether  there  was  competent  evidence  suf- 
ficient, in  reason,  to  incline  the  mind  efficiently  to  the  conclusion  reached. 
In  the  first  a  conclusion  without  any  credible  evidence  to  support  it,  or  any 
evidence  at  all,  is  mere  judicial  error.  In  the  second,  want  of  credible  ev- 
idence which,  in  case  of  the  verdict  of  a  jury,  would  be  sufficient  upon  ap- 
peal to  require  a  i-eversal  is  jurisdictional  error — error  committed  outside 
of  jurisdiction,  instead  of  in  the  exercise  of  jurisdiction,  where  the  writ  takes 
hold,  performing  its  function  of  returning  the  tribunal  to  its  proper  sphere 
of  action."  State  ex  rel.  Milwaukee  Medical  College  v.  Chittenden,  127  Wis. 
468,  107  N.  W.  500  (1906). 


Ch.  8)  ACTIONS  FOR  SPECIFIC   RELIEF.  485 

fest  error  does  not  there  appear,  the  order  complained  of  must  be 
affirmed.  The  testimony,  remonstrances,  etc.,  brought  up  with  the 
record,  form  no  part  thereof,  and  cannot  be  resorted  to  for  any  pur- 
pose.    Peet  V.  City  of  Pittsburgh,  96  Pa.  218. 

If  the  court  of  quarter  sessions  had  jurisdiction  of  the  subject- 
matter  and  the  plaintiff  in  error  had  his  day  in  court,  it  must  be  pre- 
sumed, until  the  contrary  appears  by  the  record,  that  the  proceedings 
were  regular.    Omnia  prtesumunter  rite  esse  acta. 

The  act  of  March  23,  1867  (Purd.  Dig.  p.  945,  pi.  29),  provides 
that  it  shall  be  lawful  for  the  courts  of  quarter  sessions  "to  hear 
petitions,  in  addition  to  that  of  the  applicant,  in  favor  of  and  remon- 
strances against  the  application  for  such  license,  and  in  all  cases  to 
refuse  the  same  whenever,  in  the  opinion  of  said  court,  having  due 
regard  to  the  number  and  character  of  the  petitioners  for  and  against 
such  application,  such  license  is  not  necessary  for  the  accommodation 
of  the  public,  and  entertainment  of  strangers  and  travelers ;  and,  up- 
on sufficient  cause  being  shown,  the  said  courts  shall  have  power  to 
revoke  any  license  granted  by  them."  The  court  therefore  had  juris- 
diction of  the  subject;  it  had  the  power,  "upon  sufficient  cause  be- 
ing shown,"  to  revoke  the  license  which  it  had  granted  to  plaintiff 
in  error.  He  was  duly  brought  into  court,  testimony  was  taken,  and, 
as  the  record  shows,  after  hearing  and  due  consideration  the  court, 
in  the  exercise  of  the  discretion  with  which  it  was  invested,  revoked 
the  license.  If  there  was  anything  on  the  face  of  the  record  to  show 
affirmatively  that  the  court  acted  arbitrarily  and  without  cause,  or 
that  the  cause  shown  was  wholly  insufficient,  it  would  exhibit  such 
an  abuse  of  discretion  as  would  demand  a  reversal  of  the  order  com- 
plained of ;  but  nothing  of  the  kind  appears  in  the  record  before  us, 
and  we  have  no  right  to  go  outside  in  search  of  something  on  which 
to  convict  the  court  below  of  error,  nor  do  we  feel  disposed  to  do  so. 

Appeal  quashed,  and  order  revoking  the  license  granted  to  plain- 
tiff in  error  affirmed. 


PEOPLE   ex   rel.    MALONEY  v.   LINDBLOM. 

(Supreme  Court  of  Illinois,  1S99.     182  111.  241,  55  N.  B.  358.) 

Appeal  from  the  circuit  court  of  Cook  county. 

Petition  for  a  common-law  writ  of  certiorari,  brought  in  the  name 
of  the  People,  on  the  relation  of  John  Maloney,  against  Robert 
Lindblom,  Edward  Carroll,  and  John  W.  Ludwig,  Civil  Service  Com- 
missioners. 

Mr.  Justice  Craig  delivered  the  opinion  of  the  court. 

It  will  be  observed  upon  an  examination  of  the  prayer  of  the  peti- 
tion that  the  petitioner  asks  that  the  certification  of  Aaron  L.  Brown 
may  be  rescinded  and  revoked,  and  that  the  name  of  the  petitioner, 
John  Maloney,  may  be  certified  by  the  commission  to  the  commissioner 


486  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

of  public  works  in  lieu  of  the  name  of  Aaron  L.  Brown.  It  is  ap- 
parent from  the  prayer  of  the  petitioner  that  the  scope  and  purpose 
of  a  common-law  writ  of  certiorari  are  misconceived  by  him.  This 
is  not  a  proceeding  in  which  the  certification  of  Brown  by  the  civil 
service  commission  can  be  set  aside  by  the  court,  and  the  petitioner, 
John  Maloney,  placed  in  his  stead,  nor  is  it  a  contest  in  which  the 
right  of  one  of  the  parties  to  the  place  in  question  may  be  set  aside 
and  the  other  sustained.  The  only  office  of  the  writ  of  certiorari  is 
to  bring  before  the  court  the  record  of  the  proceedings  of  the  inferior 
tribunal  for  inspection,  and  the  only  judgment  to  be  rendered  is  that 
the  writ  be  quashed  or  that  the  record  of  the  proceedings  be  quashed. 
Chicago  &  Rock  Island  Railroad  Co.  v.  Fell,  22  111.  333. 

The  petitioner  seems  to  be  laboring  under  another  misconception 
in  regard  to  his  rights  and  the  power  of  the  court  in  a  proceeding  of 
this  character.  The  inferior  tribunal,  where  the  record  is  brought  be- 
fore the  court  by  writ  of  certiorari,  may  have  erred  in  its  rulings  on 
questions  of  law  during  the  progress  of  the  trial,  or  it  may  have  erred 
in  the  application  of  the  law  to  the  facts  in  reaching  its  final  judg- 
ment, and  yet  those  errors  cannot  be  reviewed  and  corrected  in  a  pro- 
ceeding of  this  character.  On  a  return  to  a  writ  bringing  the  record 
before  the  court  the  only  proper  inquiry  is  whether  the  inferior  tri- 
bunal had  jurisdiction  and  proceeded  legally — i.  e.,  followed  the  form 
of  proceedings  legally  applicable  in  such  cases — and  not  whether  it 
correctly  decided  the  questions  arising  upon  the  admission  or  ex- 
clusion of  evidence,  the  giving  and  refusing  of  instructions,  and  other 
like  questions,  during  the  progress  of  the  trial.  The  rulings  of  a 
court  may  be  erroneous  and  yet  it  may  have  jurisdiction  and  proceed 
legally.  Hamilton  v.  Town  of  Harwood,  113  111.  154.  The  rule 
announced  in  the  case  cited  has  been  fully  sustained  by  other  cases. 
Donahue  v.  County  of  Will,  100  111.  94 ;  Scates  v.  Chicago  &  North- 
western Railway  Co.,  104  111.  93.  Here  the  jurisdiction  of  the  civil 
service  commission  is  not  disputed,  and  it  is  apparent  that  the  tribu- 
nal proceeded  according  to  the  forms  of  law  applicable  in  such  cases. 

But  it  is  said  that  the  civil  service  commission  made  an  erroneous 
decision  in  holding  that  Aaron  L.  Brown,  who  was  engaged  in  the 
military  service  of  the  United  States  in  1861  and  who  had  been 
honorably  discharged,  was  entitled  to  preference  under  section  10^2 
of  the  act  of  1897,  as  the  section  of  the  act^was  unconstitutional.  It 
may  be  true  that  the  civil  service  commission  erred  in  its  ruling  on  the 
hearing,  but  that  is  a  question  which  cannot  be  inquired  into  by  writ 
of  certiorari.  The  civil  service  commission  had  jurisdiction  and  it 
proceeded  according  to  the  forms  of  law,  and  if  that  tribunal  made 
a  mistake  in  holding  that  the  act  of  the  Legislature  was  valid, 
and  the  facts  presented  brought  Aaron  L.  Brown  within  the  terms 
of  the  act  which  entitled  him  to  a  preference  over  the  petitioner, 
the  ruling  of  the  tribunal  was  mere  error,  which  cannot  be  reviewed 
in  this  proceeding. 


Cll.  8)  ACTIONS   FOR  SPECIFIC   RELIEF.  487 

We  think  the  judgment  of  the  court  quashing  the  writ  was  cor- 
rect, and  it  will  be  affirmed. 
Judgment  affirmed. "'^ 


POWELL  V.  BULLIS. 

(Supreme  Court  of  Illinois,   1906.     221   HI.  379,  77  N.  E.  575.) 

Certiorari  to  review  the  action  of  the  civil  service  commission  of 
Chicago  in  removing  Bullis  as  a  patrolman  from  the  police  force. 

Hand^  J.^°  ^  *  -•■'  The  main  reason  urged  by  appellee  as 
grounds  for  sustaining  the  judgment  of  the  lower  courts  is  that  the 
record  filed  as  a  return  to  the  writ  does  not  show  that  Bullis  was 
notified  of  the  time  and  place  fixed  by  the  civil  service  commission 
for  a  hearing  upon  the  charges  preferred  against  him,  or  that  he 
waived  notice  of  the  time  and  place  of  hearing  by  appearing  before 
said  police  trial  board  or  otherwise.  Section  13  of  the  civil  service 
act  (Kurd's  Rev.  St.  1903,  c.  24,  §  457)  provides:  "No  officer  or  em- 
ploye in  the  classified  civil  service  *  *  *  shall  be  removed  or 
discharged  except  for  cause,  upon  written  charges  and  after  an  op- 
portunity to  be  heard  in  his  own  defense."  And  section  1  of  rule 
8  of  the  civil  service  commission  provides :  "The  commission  shall 
cause  notice  in  writing  to  be  personally  served  on  the  accused,  or  to 
be  mailed  to  him  at  his  own  address,  as  shown  by  the  records  of  the 
commission,  stating  the  time  (which  shall  not  be  less  than  five  days 
after  the  service  or  mailing  of  such  notice)  and  place  when  and 
where  such  charges  will  be  investigated,  and  shall  give  the  accused  an 
opportunity  to  be  heard  in  his  own  defense  at  such  investigation." 

The  giving  or  waiver  of  such  notice  was  clearly  jurisdictional 
(Commissioners  of  Highways  v.  Smith,  217  111.  250,  75  N.  E.  396), 
and  as  the  court  could  only  determine  that  question  from  an  examina- 
tion of  the  record  filed  as  a  return  to  the  writ  (Joyce  v.  City  of  Chi- 
cago, supra  [216  111.  471,  75  N.  E.  184]),  and  the  record  failed  to 
show  that  Bullis  had  been  notified  or  waived  notice  of  the  time  and 
place  of  his  hearing  upon  the  charges  preferred  against  him,  we  think 
the  police  trial  board  was  without  power  to  hear  the  charges  made 
against  him  or  the  civil  service  commission  to  approve  the  same  and 
order  him  discharged  as  a  patrolman  from  the  police  force  of  the 
city  of  Chicago,  and  that  the  trial  court  properly  quashed  the  proceed- 
ings of  the  commission. 

The  judgment  of  the  Appellate  Court  will  be  affirmed. 

Judgment  affirmed. ^^ 

7  9  See.  also,  Kamniann  v.  Chicago,  222  111.  G3,  78  N.  E.  IG  (190G). 

so  Only  a  portion  of  the  opinion  of  Hand,  .J.,  is  here  printed.  The  court 
first  holds  that  the  writ  may  be  issued  where  personal  rights  are  involved  as 
well  as  where  property  rights  are  involved. 

SI  Accord:  Lantz  v.  Hightstown,  46  N.  J.  Law.  102  (1884) ;  Common  Coun- 
cil of  Oshkosh  V.  State,  59  Wis.  425,  18  N.  W.  .324   (1884). 


488  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part   2 

PEOPLE  ex  rel.  DELAWARE  &  H.  CANAL  CO.  v.  PARKER 

et  al. 

(Court  of  Appeals  of  New  York,  1889.     117  N.  Y.  86,  22  N.  E.  752.) 

Appeal  from  Supreme  Court,  General  Term,  Third  Department. 

Finch,  J.  The  relator  complains  of  the  judgment  of  the  General 
Term,  which  dismissed  its  writ  of  certiorari  issued  under  the  act  of 
1880.^-  The  illegality  which  was  asserted  as  sufficient  to  invalidate 
and  annul  the  assessment  upon  its  corporate  property  was  founded 
upon  an  inquiry  into  the  title  of  the  assessors  to  their  office,  and  a 
denial  of  their  right  to  act  as  such  at  all.  The  trial  court  found 
that  the  two  who  alone  made  up  and  certified  the  roll  were  not  in 
truth  assessors,  either  de  jure  or  de  facto.  Assuming  that  to  be 
true,  the  appellate  court  nevertheless  held  that  the  wrong  could  not 
be  redressed  in  the  proceeding  adopted,  and  we  agree  with  that 
conclusion. 

The  function  of  the  writ  of  certiorari  is  to  review  the  judicial  action 
of  inferior  officers  or  tribunals.  It  assumes  their  existence,  and  the 
fact' of  official  action,  but  draws  in  question  the  legality  or  correctness 
of  that  action.  It  is  wholly  unsuited  to  a  case  in  which  there  is  no 
officer  and  no  tribunal,  and  where,  as  a  consequence,  there  could  not 
have  been  any  judicial  action,  or  anything  to  review.  In  People  v. 
Covert,  1  Hill,  674,  that  doctrine  was  settled  in  an  opinion  unusually 
brief  and  curt,  but  which  touched  the  precise  difficulty.  It  is  said  of 
that  case,  and  of  others  like  it,  that  they  dealt  only  with  a  common- 
law  certiorari ;  that  it  was  competent  for  the  Legislature  to  extend 
the  range  of  the  writ,  and  broaden  its  application;  and  that  such 
was  the  operation  of  the  act  of  1880.  But  a  correct  view  of  that  en- 
actment will  not  justify  such  a  construction.  The  statute  allows 
the  writ  to  be  issued  upon  the  petition  of  a  person  "assessed,"  and 
who  is  aggrieved  by  that  assessment,  and  desires  to  review  it.  There 
must  be  an  allegation  that  the  assessment  is  illegal  or  erroneous. 
When  the  writ  is  granted,  it  will  not  stay  the  proceedings  of  the  asses- 
sors; and  if,  thereby,  the  relief  of  a  judgment  is  not  reached  before 
the  collection  of  the  tax,  the  remedy  provided  is  a  reimbursement  in 
the  next  year.  The  writ  is  to  run  to  the  assessors,  who  are  to  re- 
turn the  assessment  roll,  or  copies  thereof,  and  their  official  proceed- 
ings. In  all  this  we  observe  that  an  old  writ,  whose  function  and 
character  was  well  settled  and  understood,  was  applied  to  a  new  pur- 
pose, and  moulded  so  far,  and  only  so  far,  as  was  necessary  to  ac- 
complish the  review  desired.     But  it  remained  a  writ  of  review.     It 

8  2  Laws  N.  Y.  1880,  c.  269,  provides  that  "a  writ  of  certiorari  may  be  al- 
lowed by  the  Supreme  Court,  on  the  petition,  duly  verified,  of  any  person  or 
corporation  assessed,  and  claiming  to  be  aggrieved,  to  review  an  assessment 
of  real  or  personal  property  for  the  purpose  of  taxation,  made  in  any  town, 
*     *     *     when  the  petition  shall  set  forth  that  the  assessment  is  illegal,"  etc. 


Ch.  8)  ACTIONS  FOR  SPECIFIC   RELIEF.  489 

assumed  the  existence  of  the  officers  whose  judicial  action  it  sought 
to  examine,  and  was  not  changed  into  a  plough  to  root  up  a  tres- 
pass. In  its  application  to  the  present  caSe,  it  usurped  the  functions 
of  a  writ  of  quo  warranto.  It  challenged  the  titles  of  the  two  as- 
sessors. It  pronounced  then  intruders  and  usurpers,  and  denied  their 
official  character  and  rights. 

When  we  remember  that  the  writ  of  quo  warranto  has  been  abol- 
ished, and  an  action  substituted;  that  such  action  is  at  law,  and  en- 
titles the  officer  to  a  trial  by  jury;  and  that,  under  the  Code,  his  title 
can  only  be  challenged  in  that  manner — we  shall  see  that  a  writ  of 
certiorari  can  of  necessity  perfoi'm  no  such  office.  It  is  quite  true 
that  the  act  of  1880  gives  redress  against  not  only  an  erroneous,  but 
also  an  illegal,  assessment,  and  in  the  latter  case  cancels  and  annuls 
the  tax.  But  it  contemplates  an  assessment  made  by  proper  officers, 
and  which,  although  illegal  in  some  respects,  is  not  wholly  and  alto- 
gether void;  for  in  the  latter  event  there  is  abundant  remedy  open 
to  the  taxpayer,  and  a  certiorari  will  rarely  issue  where  other  suffi- 
cient and  adequate  remedy  exists.  People  v.  Supervisors,  1  Hill,  198. 
The  act  of  1880  was  intended  to  furnish  a  remedy  wdiere  none  before 
existed,  and  to  reach  error  and  illegality  for  which  there  was  no  ade- 
quate redress.  As  this  case  stood  at  special  term,  the  relator  was  in 
no  danger,  and  exposed  to  no  risk.  The  collector  would  levy  at  his 
peril,  for  his  warrant  was  void  on  its  face.  This  court  has  held  that 
the  collector's  authority  consists  of  the  assessment  roll,  and  the  for- 
mal warrant  annexed ;  and  these  must  be  read  together,  in  deter- 
mining the  officers'  power  and  protection.  Van  Rensselaer  v.  Wit- 
beck,  7  N.  Y.  517.  If,  then,  no  assessors,  and,  so,  no  assessment  roll, 
existed,  the  warrant  would  be  void  on  its  face,  and  confer  no  au- 
thor! cy  whatever.  The  collector  could  be  sued  if  he  levied,  and  the 
usurpers  who  directed  him  be  held  responsible ;  for  the  Special  Term 
decided  that  the  two  men  who  signed  the  roll  were  not  even  assessors 
de  facto.  If  they  were  such,  the  ground  of  the  judgment  would  dis- 
appear;  and,  if  they  were  not,  the  remedy  was  elsewhere. 

Another  suggestion,  however,  was  made  on  behalf  of  the  relator. 
Assuming  that  the  titles  of  the  two  assessors  could  not  be  assailed 
in  this  proceeding,  and  so  that  we  are  bound  to  regard  them  as  law- 
ful officers,  it  was  yet  found  that  they  acted  illegally  in  fixing  the 
assessed  values  without  notice  to  Bogart,  who  was  the  third  as- 
sessor. Such  action  by  the  majority  is  unlawful,  and  vitiates  the 
whole  assessment.  Doughty  v.  Hope,  3  Denio,  598 ;  People  v.  Su- 
pervisors, 11  N.  Y.  563.  But  we  are  of  opinion  that  the  act  of  1880 
was  not  intended  to,  and  does  not,  furnish  the  remedy,  where  the 
complaint  is  not  of  some  error  or  illegality  in  one  or  more  assess- 
ments, and  the  judicial  action  which  evolved  them,  but  asserts  that 
there  never  were  any  valid  assessments  at  all,  and  that  the  whole  roll 
is  utterly  void;  for  in  such  case  there  is  no  judicial  action  to  be  re- 
viewed  and    corrected,   but    an    unauthorized   wrong   and   trespass. 


490  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

There  never  was  any  defect  of  remedies,  in  such  a  case,  which  made 
necessary  a  new  enactment;  and  all  the  provisions  of  the  act  of  1880 
seem  to  contemplate  both  assessors  and  an  assessment  roll,  by  whom 
or  in  which  illegal  steps  may  have  been  taken,  or  errors  may  exist, 
for  the  correction  of  which  a  certiorari  should  be  awarded.  Only  in 
that  manner  could  judicial  action  which  was  illegal  or  erroneous  be 
reviewed.  The  act  provides  for  striking  an  unlawful  tax  from  the 
roll,  but  not  the  annulment  and  destruction  of  the  roll  itself.  If 
that  be  wholly  and  absolutely  void,  it  can  confer  no  authority,  and 
give  no  protection,  and  the  remedies  of  the  taxpayer  against  the  of- 
fenders are  ample,  and  have  long  existed. 

The  General  Term  were  therefore  right  in  their  reversal,  and  the 
judgment  should  be  affirmed,  with  costs.  All  concur,  except  Pe;ck- 
HAM^  J.,  not  sitting. 


STATE  ex  rel.  SCHAEFER  v.  SCHROFE. 
(Supreme  Court  of  Wisconsin,  1904.     123  Wis.  98,  100  N.  W.  1030.) 

Appeal  from  circuit  court,  Racine  county. 

Certiorari  by  the  State,  on  the  relation  of  Leonard  G.  Schaefer, 
against  Henry  J,  Schrofif,  to  review  the  action  of  the  city  council  of 
Racine  repealing  a  certain  ordinance  granting  a  liquor  license.  From 
a  judgment  in  favor  of  the  latter,  defendant  appeals.     Reversed. 

The  relator  obtained  an  ostensible  license  in  July,  1903,  to  sell 
liquor  in  a  part  of  the  city  of  Racine,  where  an  existing  ordinance 
required  the  consent  of  certain  neighbors  as  a  condition  precedent. 
In  October  it  was  represented  to  the  council  that  such  consents  had 
been  obtained  by  fraud  and  misrepresentation,  and  reversal  of  their 
action  in  granting  the  license  was  prayed ;  whereupon  the  council 
caused  notice  to  be  given  to  the  relator  to  appear  and  show  cause  why 
his  license  should  not  be  declared  void  for  the  specified  reasons. 
Thereafter,  in  December,  after  some  hearing  and  investigation,  the 
council  adopted  a  resolution  that  said  ordinance  "be  and  is  hereby  de- 
clared void  and  of  no  effect,  and  that  the  city  clerk  be  and  hereby  is 
ordered  to  notify  said  Leonard  Schaefer  of  the  adoption  of  this  res- 
olution, and,  further,  that  the  money  tendered  by  said  Leonard  Schaef- 
er will  be  returned  to  him."  The  relator  sued  out  writ  of  certiorari 
to  review  the  validity  of  this  resolution,  to  which  return  was  made 
by  the  respondent  as  city  clerk,  showing  substantially  the  situation 
above  stated.  The  circuit  court  held,  as  matter  of  law,  that  the 
council  had  no  jurisdiction  or  power  to  declare  said  license  void, 
except  upon  the  grounds  and  by  the  procedure  specified  by  section 
1558,  Rev.  St.  Wis.  1898,  for  a  revocation,  and  entered  judgment, 
reversing,  annulling,  vacating,  and  setting  aside  the  resolution  of  the 
council. 


Ch.  S)  'ACTIONS   FOR   SPECIFIC  RELIEF.  491 

Dodge,  J.  (after  stating-  the  facts).  We  deem  it  entirely  plain,  up- 
on inspection  either  of  the  return  or  petition,  that  the  council  was 
in  no  wise  attempting  to  exercise  the  jurisdiction  conferred  upon  it 
by  section  1558,  Rev.  St.  Wis.  1898,  to  revoke  a  license,  valid  at  its 
inception,  but  which,  by  reason  of  subsequent  misconduct,  the  com- 
mon council  is  authorized  to  recall.  The  petition  of  neighbors,  the 
notice  to  Mr.  Schaefer,  the  facts  investigated,  and  the  final  resolu- 
tion mark  an  inquiry  and  attempt  to  decide  upon  the  question  whether 
the  license  was  valid  originally,  or  void  by  reason  of  fraud  perpetrated 
upon  the  council  in  obtaining  it.  Hence  we  need  not  consider  wheth- 
er the  council  acquired  jurisdiction  to  act  in  revocation  of  this  li- 
cense under  section  1558,  or,  by  improper  proceeding,  lost  such  ju- 
risdiction. The  act  done  was  to  declare  that  the  license  was,  and 
always  had  been,  void.  And  it  may  be  conceded  to  the  relator  that 
there  is  much  in  the  record  indicating  the  idea,  both  on  the  part  of 
the  petitioners  and  on  the  part  of  the  council,  that  such  resolution 
might  have  conclusive  effect  as  an  adjudication  of  the  invalidity  of 
the  ordinance.  As  relator  urges,  however,  there  is  nowhere  in  the 
statute  or  charter  any  authority  given  to  the  city  council  to  make 
any  such  decision.  Of  course,  there  is  an  inherent  power  in  the 
city  to  investigate,  and  to  reach  conclusion  as  to  the  attitude  which  it 
will  take — whether  to  contend  for  the  invalidity  of  such  a  license  or 
not  to  make  such  contention;  just  as  there  is  the  right  in  any  in- 
dividual to  investigate  facts,  and  make  up  his  own  mind  as  to  his 
attitude  with  reference  to  the  legal  validity  of  an  act  done  by  him. 
But,  in  absence  of  some  authority  of  law,  the  city  council  could  go  no 
further.  The  license  was  neither  more  nor  less  valid  by  reason  of 
the  resolution  here  assailed.  Such  resolution  concluded  no  one,  and 
might  not  only  be  attacked  collaterally,  but  wholly  disregarded  by 
any  forum  in  which  the  validity  of  the  license  might  be  presented  for 
consideration  and  decision. 

To  this  view  both  parties  accede,  and  of  its  correctness  we  can 
have  no  doubt.  As  a  result,  however,  it  is  obvious  that  it  does  no 
injury  to  the  relator.  It  took  away  no  right  which  he  previously 
had.  Its  utmost  effect  was  to  notify  him  that  the  council  purposed 
to  contend  that  his  ostensible  license  was  invalid.  But,  if  that  ques- 
tion was  ever  presented  in  a  judicial  forum  for  investigation  or  de- 
cision, his  right  to  have  the  same  tried  as  an  independent  and  orig- 
inal one  was  not  in  any  respect  aft'ected  by  the  decision.  Certiorari 
is  a  discretionary  writ,  which  should  issue  only  when  necessary  to 
prevent  injustice  or  unlawful  injury.  Courts  will  not  concern  them- 
selves, by  this  extraordinary  writ,  to  declare  the  invalidity  of  non- 
jurisdictional  acts  when  the  relator  suft'ers  no  injury  thereby.  Knapp 
V.  Heller,  32  Wis.  467;  State  ex  rel.  v.  Mayor,  etc.,  101  Wis.  208, 
77  N.  W.  167.  In  both  of  these  cases  the  issue  of  the  writ  by  cir- 
cuit court  was  reviewed,  and  reversed  on  the  ground  that  the  cases 
presented  failed  to  show  equity  in  the  relator;    hence,  that  the  issue 


492  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

of  the  writ  was  an  abuse  of  the  discretion  of  the  lower  court.  In 
State  ex  rel.  Anderson  v.  Timme,  70  Wis.  627,  3U  N.  W.  325,  on  an 
appHcation  to  the  original  jurisdiction  of  the  Supreme  Court  for  a 
writ  of  certiorari,  it  was  decided  that  the  writ  should  not  be  issued, 
because  the  action  of  the  land  commissioners  in  investigating  and 
declaring  void  a  land  patent  was  so  entirely  beyond  their  jurisdic- 
tion as  to  be  wholly  innocuous. 

Complete  analogy  exists  between  the  action  of  the  land  commis- 
sioners there  considered  and  the  action  of  the  council  now  before 
us ;  at  least  from  the  standpoint  of  the  relator.  The  action  in  each 
case  was  wholly  without  jurisdiction,  could  be  of  no  possible  force 
save  as  the  mere  gratuitous  declaration  of  the  opinion  of  the  body 
from  which  it  emanated,  or  at  most  a  notification  of  that  opinion  and 
of  their  intended  attitude;  in  one  case  toward  the  patent,  in  the 
other  toward  the  license.  We  deem  the  reasoning  of  that  case  con- 
clusive here — that  it  would  be  so  needless  an  exercise  of  a  court's 
power  to  review  and  pass  upon  the  validity  of  that  declaration  that  no 
court,  in  the  proper  exercise  of  its  discretion,  should  issue  its  extraor- 
dinary writ  of  certiorari.  Upon  the  same  reasons  it  became  the  duty 
of  the  court,  having  issued  the  writ,  upon  being  perhaps  further  en- 
lightened as  to  the  situation  by  the  return,  to  have  dismissed  the  pro- 
ceedings. 

Judgment  reversed,  and  cause  remanded,  with  directions  to  quash 
the  writ  and  dismiss  the  proceedings.*^ 


SECTION  59.— QUO  WARRANTO  «* 


STATE  V.  EVANS. 
(Supreme  Court  of  Arkansas,  1841.     3  Ark.  585,  3G  Am.  Dec.  4GS.) 

RiNGO,  C.  J.,  delivered  the  opinion  of  the  court. 

The  pleadings,  although  they  are  in  some  respects  rather  uncertain 
and  informal,  are  believed  to  be  substantially  good,  if  the  facts  dis- 
closed are  such  as  in  law  authorize  the  writ,  or  enable  the  state  to 

83  The  following  additional  cases  in  this  collection  are  cases  of  certiorari : 
Hartman  v  Wilmington,  1  Marvel  (Del.)  215,  41  Atl.  74  (1894)  ;  Queen  v. 
Bowman,  [18981  1  Q.  B.  6(>3 ;  Van  Nortwick  v.  Bennett,  G2  N.  J.  Law,  151. 
40  Atl.  689  (1898);  State  (Morford)  v.  Board  of  Health  of  Asbury  Park,  Gl 
N.  J  Law,  386,  39  Atl.  706  (1898);  People  ex  rel.  Copcutt  v.  Board  of  Health 
of  Yonkers,  140  N.  Y.  1,  35  N.  E.  320,  23  L.  R.  A.  481,  37  Am.  St.  Rep.  522 
(1893) ;  People  ex  rel.  Shuster  v.  Humphrey,  156  N.  Y.  231,  50  N.  E.  860 
(1898)  ;  Tomlinson  v.  State  Board  of  Equalization,  88  Tenn.  1,  12  S.  W. 
414,  6  L.  R.  A.  207  (1889);  .Toyce  v.  Chicago,  21G  111.  466,  75  N.  E.  IfH 
0-90^ ;   Queen  v.  Wood,  5  El.  &  Bl.  49  (18.55). 

84  The  remedy  of  quo  warranto  (in  the  modern  practice,  in  the  form  of 
an  information  in  the  nature  of  a  quo  warranto)  is  not  generally  available 


Ch.  8)  ACTIONS   FOR  SPECIFIC   RELIEF.  493 

require  the  defendant  to  show  his  warrant  or  authority  to  preside 
upon  the  trial  of  and  adjudicate  the  cases  therein  mentioned. 

The  first  question,  therefore,  to  be  determined,  is  whether  the  ac- 
tion or  legal  remedy  for  the  wrong  supposed  to  have  been  cotnmitted, 
has  not  been  misconceived.  It  must,  w^e  think,  be  conceded  that 
the  common  law  regards  the  proceeding  by  writ  of  quo  warranto  as 
the  most  appropriate  remedy  for  the  king,  by  which  he  may  at  pleas- 
ure require  any  subject,  exercising  a  public  franchise  or  authority 
which  he  cannot  legally  exercise  without  some  grant  or  authority 
from  the  crown,  to  show  by  what  warrant  or  authority  he  exercises 
it,  and  thereupon  demand  and  have  a  judicial  trial  and  determina- 
tion of  the  legal  right  of  the  defendant  to  exercise  such  office  or 
franchise,  and  that,  by  analogy,  the  state  here  may  in  like  cases  have 
the  same  remedy.  But  here,  as  in  England,  the  object  and  effect  of 
the  proceeding  must  be  either  to  oust  the  party  defendant  of  the 
franchise,  if  he  fails  to  show  in  himself  a  complete  legal  right  to 
its  exercise,  derived  from  or  under  the  authority  of  the  state,  or,  if 
the  franchise  has  been  once  legally  granted,  and  has  been  forfeited  by 
the  defendant  or  those  through  whom  he  derives  title  to  it,  to  seize  it 
into  the  hands  of  the  state.  But  it  is  believed  that  no  precedent  can 
be  found  where  this  writ  was  ever  issued  for  the  purpose  of  restrict- 
ing or  preventing  any  one  legally  possessed  of  a  public  office  or  fran- 
chise from  exercising  any  right,  authority,  or  privilege  incident  there- 
to, or  claimed  by  virtue  thereof.  It  is  a  legal  proceeding,  authorized 
exclusively  for  the  purpose  of  investigating  and  determining,  by  ju- 
dicial authority,  the  legal  right  to  a  public  office  or  franchise,  but  is 
not  nor  ever  was  authorized  by  the  common  law  to  be  used  as  the 
legal  instrument  or  means  of  prohibiting  or  restraining  a  public  of- 
ficer, or  person  exercising  a  public  franchise  from  the  doing  of  any 
particular  act  or  thing,  the  right  of  doing  which  was  claimed  by  virtue 
of  such  office  or  franchise,  and  constituted  a  portion  only  or  an  in- 
tegral part  of  the  rights,  powers,  and  privileges  incident  thereto. 

For  example,  although  it  is  the  appropriate  legal  proceeding  to 
oust  or  remove  from  office,  by  judicial  authority,  a  person  who  is  in- 
eligible to  the  office  of  judge  of  the  circuit  court,  or  who  has  not 
been  legally  elected,  appointed,  commissioned,  or  qualified  to  hold 
such  office,  yet  if  the  office  be  held  by  a  person  eligible  thereto,  who 
has  been  legally  elected,  or  appointed,  commissioned,  and  qualified  to 
hold  it,  he  cannot  by  such  proceeding  be  legally  prohibited  or  pre- 
vented from  taking  cognizance  of  and  adjudicating  any  suit  or  pro- 
ceeding instituted  and  pending  for  adjudication  in  any  court  which 
he  is  by  law  authorized  to  hold,  although  such  court  may  not  legally 

for  the  protection  of  private  rights  against  administrative  action.  Its  prin- 
cipal uses  are  the  correction  of  the  illegal  exercise  of  corporate  powers  and 
the  determination  of  controversies  regarding  the  title  to  public  office.  As  to 
its  history  and  use  for  these  purposes,  see  Attorney  General  v.  Sullivan,  163 
Mass.  44G,  40  N.  E.  84.3,  28  L.  R.  A.  455   (1895). 


494  RELIEF  AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

possess  jurisdiction  of  the  matter,  or  authority  to  adjudicate  and  de- 
termine the  controversy.  So,  if  the  commission  be  special,  to  hold 
plea  of  and  adjudicate  and  determine  certain  cases  particularly  men- 
tioned and  described,  a  portion  only  of  which  he  can  legally  adjudi- 
cate and  determine,  and  he  assumes  jurisdiction  over  all  of  the 
cases  so  mentioned  and  described,  notwithstanding  the  want  of  legal 
authority  in  him  to  adjudicate  and  determine  a  part  of  them,  he 
cannot  be  legally  restrained  or  prohibited  therefrom  as  to  the  cases 
only  which  he  has  no  legal  right  to  take  cognizance  of,  try,  and  de- 
cide, by  any  proceeding  upon  a  writ  of  quo  warranto ;  because  the 
object  and  effect  of  the  proceeding  in  such  case  would  not  be  to 
oust  or  divest  him  of  the  office  itself,  but  only  to  prohibit  him  from 
exercising  a  power  incident  to  the  office  in  regard  to  a  particular 
case,  thus  conceding  to  the  defendant  the  legal  title  to  the  office,  and 
denying  only  his  legal  right  to  exercise  it  over  a  particular  case,  or  in 
reference  to  some  particular  matter  or  subject,  which  is  not  and 
never  was  the  legitimate  office  or  object  of  such  writ,  or  the  pro- 
ceedings thereupon  authorized  by  law. 

The  defendant  shows  that  the  judge  of  the  Fifth  judicial  circuit, 
embracing  the  county  of  Pulaski,  had  officially  certified  to  the  Gov- 
ernor the  fact  of  his  disqualification  to  preside  on  the  trial  of  sundry 
cases  then  pending  in  the  circuit  court  of  said  county,  which  were 
specially  designated,  and  among  which  were  the  cases  mentioned  in 
the  writ,  and  that  the  Governor  thereupon  appointed  and  commis- 
sioned specially  the  defendant  for  the  trial  and  determination  of  the 
cases  so  certified,  which  were  also  specially  enumerated  in  his  com- 
mission, including  with  others  the  cases  mentioned  in  the  writ;  and 
these  facts  are  not  controverted  by  the  state,  but  are,  by  her  replica- 
tion, admitted  to  be  true.  The  defendant  therefore,  from  aught  that 
appears  in  the  pleadings  before  us,  is  eligible  to  and  legally  possessed 
of  the  office  of  judge  of  the  circuit  court,  and  notwithstanding  his 
office  and  authority  are  limited  to  the  trial  and  determination  of  the 
cases  specified  in  his  commission,  he  was  unquestionably  invested 
with  legal  authority  to  hold  the  circuit  court  in  which  such  cases 
were  pending,  for  their  trial  and  determination,  and  in  reference 
thereto  was  clothed  with  all  the  powers  appertaining  to  said  court, 
and  was  by  law  to  preside  therein  pending  their  trial  and  determina- 
tion, unless  prevented  by  some  legal  remedy  applicable  to  the  case, 
and  interposed,  prosecuted,  or  presented  by  the  parties  themselves, 
instead  of  the  state,  if  in  fact  he  had  no  legal  jurisdiction  of,  or  right 
to  try  and  determine,  a  portion  only  of  the  cases  mentioned  in  his 
commission. 

The  writ  before  us  does  not  require  the  defendant  to  show  by  what 

warrant  he  exercises  the  office  or  franchise  of  judge  of  the  circuit 

I        court  in  and  for  the  county  of  Pulaski,  but  simply  demands  of  him 

'        to  show  by  what  authority  he  exercises  said  office  in  respect  to  the 

two  cases  therein  mentioned,  being  a  part  only  of  the  cases  he  was 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  495 

commissioned  specially  to  try.  Nor  does  the  replication  question  his 
legal  right  to  the  office  itself,  but  simply  denies  the  disqualification 
of  the  regular  judge  of  the  Fifth  judicial  circuit  to  adjudicate  the 
cases  mentioned  in  the  writ,  thus  attempting,  as  it  were,  to  divide 
the  office,  and  to  consider  it  as  a  distinct  office  depending  upon  a 
separate  warrant  in  reference  to  each  case,  which  the  judge  is  com- 
missioned specially  to  try  and  determine,  contrary  to  the  fact,  as 
well  as  every  principle  of  law  and  justice.  This  principle,  if  admit- 
ted to  be  true,  might  subject  the  officer  to  the  vexation  and  expense 
of  exhibiting  his  authority  in  every  case  pending  for  his  adjudication, 
and  a  judgment  in  one  case  would  be  no  bar  to  the  demand  made  of 
him  in  another,  nor  could  any  judgment  of  ouster  from  office,  or 
other  legal  judgment,  that  we  are  aware  of,  be  pronounced  against 
him  in  such  case. 

And  therefore  we  are  of  the  opinion  that  the  legal  remedy  for  the 
wrong,  if  any  has  been  committed  by  the  supposed  unauthorized  and 
illegal  certification  to  the  Governor,  by  the  regular  judge  of  the  cir- 
cuit court  of  Pulaski  county,  of  the  cases  mentioned  in  the  writ, 
has  in  this  proceeding  against  the  defendant  been  misconceived.  And 
for  this  reason  the  demurrer  to  the  replication  must  be  sustained. ^^ 


1  PEOPLE  ex  rel.  EONGRESS  v.  BOARD  OF  EDUCATION  OF 
;  CITY  OF  OUINCY. 

(Supreme  Court  of  Illinois,  1882.     101  III.  308,  40  Am.  Rep.  190.) 

Mr,  Chief  Justice  Craig  delivered  the  opinion  of  the  court. ^^ 
[  This  was  an  information  in  the  nature  of  a  quo  warranto,  brought 
;  by  the  Attorney  General,  on  the  relation  of  John  Longress,  against 
I  the  board  of  education  of  the  city  of  Quincy,  a  corporation  created 
1  by  an  act  of  the  General  Assembly  approved  February  20,  1861.  Priv, 
I  Laws  1861,  p.  252.  The  board  of  education  is  intrusted  by  law  with 
;  the  exclusive  management  and  control  of  the  public  schools  in  the 
1  city  of  Quincy.     *     *     * 

[  It  is  averred  in  the  information  that  on  the  31st  day  of  July,  1878, 
i  before  that  time,  and  since,  there  was  a  large  number,  to  wit,  five 
;  hundred  persons  of  African  descent,  commonly  called  "colored  per- 
il sons,"  between  the  ages  of  six  and  twenty-one  years,  who  for  all 
that  time  have  been  and  are  now  bona  fide  residents  of  said  city  of 
Quincy,  and  in  the  several  school  districts  thereof,  and  have  been 
I  and  are  at  all  times,  and  are  now,  ready  to  furnish  to  the  principal 
'  of  the  proper  school  satisfactory  evidence  that  they  have  been  vac- 

8  5  Quo  warranto  Iield  not  to  be  the  proper  remedy  to  test  the  validity  of 
,  an  ordinance.  State  v.  Lyons.  31  Iowa,  432  (1871)  ;  State  v.  Newark,  57 
!  Ohio  St.  430,  49  N.  E.  407    (1898). 

sc  Only  a  portion  of  the  opinion  of  Craig,  C.  J.,  is  printed. 


49G  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part   2 

cinated;  and  the  said  persons  do  now  reside,  and  at  all  times  hereto- 
fore have  in  good  faith  resided,  in  the  different  school  districts  of 
said  city  so  established  by  the  said  the  board  of  education  of  the  city 
of  Ouincy,  and  are  entitled  to  be  admitted  into  the  public  schools  of 
the  districts  in  which  they  respectively  reside,  without  being  directly 
or  indirectly  excluded  therefrom  on  account  of  their  descent  or 
color,  yet  the  said  the  board  of  education  of  the  city  of  Quincy,  dur- 
ing all  the  time  aforesaid,  without  warrant  or  authority  of  law,  have 
adopted,  maintained  and  enforced,  for  the  management  of  the  public 
schools  of  said  city,  and  to  exclude  the  said  persons  of  African  descent, 
commonly  called  "colored  persons,"  from  the  said  public  schools  in 
the  districts  in  which  they  reside,  on  account  of  their  descent  and 
color,  the  following  pretended  rules  and  regulations  for  the  govern- 
ment and  management  of  the  public  schools  of  said  city,  that  is  to 
say:  "That  the  colored  schools  of  said  city  shall  be  composed  of 
colored  pupils  who  shall  be  of  the  prescribed  age,  and  bona  fide  resi- 
dents of  said  city;  that  no  pupil  of  African  descent  shall  be  per- 
mitted to  attend  any  of  the  public  schools  of  the  city  other  than  the 
colored  schools,  and  that  all  the  colored  pupils  in  said  city  shall  at- 
tend a  certain  public  school  in  said  city,  called  the  Lincoln  School, 
and  no  other."  All  of  which  pretended  rules  and  regulations  for  the 
government  and  management  of  said  public  schools  in  said  city,  the 
said  the  board  of  education  of  the  said  city  of  Quincy,  without  au- 
thority of  law,  do  maintain  and  enforce,  to  the  damage  of  the  peo- 
ple of  the  state  of  Illinois,  and  against  the  peace  and  dignity  of  the 
same. 

The  board  of  education  filed  five  pleas  to  the  information,  to  which 
the  Attorney  General  interposed  a  demurrer,  which  the  court  car- 
ried back  and  sustained  to  the  information,  and  this  decision  of  the 
court  is  assigned  for  error. 

Whether  a  proceeding  in  the  nature  of  a  quo  warranto,  instituted 
by  the  Attorney  General,  will  lie  in  a  case  of  this  character  at  com- 
mon law,  is  a  question  which  it  will  not  be  necessary  to  determine. 
The  object  of  the  proceeding  was  to  test  the  .legality  of  the  rules 
adopted  by  the  board  of  education,  and  if  the  statute  is  broad  enough 
to  authorize  the  court  to  inquire  into  the  action  of  the  board  in 
adopting  and  enforcing  the  rules  which  excluded  children  of  color 
from  the  public  schools,  then  the  information  was  proper,  and  the 
court  erred  in  sustaining  the  demurrer. 

Section  1,  c.  112,  p^  787,  Rev.  St.  1874,  provides  "that  in  case  any 
person  shall  usurp,  intrude  into,  or  unlawfully  hold  or  execute  any 
office  or  franchise,  *  *  *  qj-  ^j-,y  corporation  does  or  omits  any 
act  which  amounts  to  a  surrender,  or  forfeiture  of  its  rights  and  priv- 
ileges as  a  corporation,  or  exercises  powers  not  conferred  by  law, 
:,k  *  =^  the  Attorney  General,  or  state's  attorney  of  the  proper 
county,  either  of  his  own  accord  or  at  the  instance  of  any  individual 
relator,  may  present  a  petition  to  any  court  of  record  of  competent 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  497 


I  jurisdiction,  or  any  judge  thereof,  in  vacation,   for  leave  to  file  an 

I  information  in  the  nature  of  a  quo  warranto,     *     *     *     and  if  such 

court  or  judge  shall  be   satisfied  that  there  is  probable  ground  for 

the  proceeding,  the  court  or  judge  may  grant  the  petition,"  etc. 

I       The  board  of  education  is  a  corporation  created  by  law,  clothed 

i  with  the  exercise  of  certain  powers  in  relation  to  the  public  schools 

of  Ouincy.     Now,  if  the  board,  in  the  discharge  of  its  duties  as  a 

corporation,   exercises   powers  not  conferred  by  law,  it  is   apparent 

I  that  it  will  fall  within  the  obvious  meaning  of  the  statute,  unless  the 

ii  plain  reading  of  the  statute  is  to  be  disregarded.     The  very  gist  of 

I  the  complaint  here  is  that  the  board  of  education,  a  corporation,  is 

1  exercising  powers  not  conferred  by  law,  unless  it  had  the  right  to 

j  adopt  and   enforce   the    rules   set   out   in'  the   information.     We   are 

I  therefore  clearly  of    opinion   that,   under   the   statute,    the   Attorney 

I  General  had  the  right  to  file  the  information.     *     *     *  st 


8T  See,  also,  People  v.  Town  of  Thornton,  186  111.  162,  57  N.  E.  841  (1900). 
In  Illinois,  formerly,  quo  warranto  was  held  not  to  be  the  proper  remedy 
to'  test  the  validity  of  the  extension  of  the  powers  of  a  municipal  corporation 
over  new  territory.  People  v.  Whltcomb,  55  111.  172  (1870).  At  present, 
quo  warranto  is  held  to  be  the  proper  remedy  for  that  puri)ose.  Evans  v. 
Lewis,  121  111.  478,  13  N.  E.  246  (1887)  ;  Shanley  v.  People,  225  111.  579, 
80  N.  E.  277   (1907). 

In  Kansas,  quo  warranto  was  used  to  oust  a  municipal  corporation  from 
the  illegal  exercise  of  the  power  to  grant  licenses  for  the  sale  of  intoxicating 
liquor.  State  v.  Topeka,  30  Kan.  653,  2  Pac.  287  (1883);  Id.,  31  Kan.  452, 
2  Pac.  593   (1884). 

See,  also.    State  v.  City  Council   of  Charleston,   1   Mill,   Const.    (S.   C.)   36 
I  (1817). 

I      With  regard  to  the  burden  of  proof  in  quo  warranto  proceedings,  see  note 
I  to  State  V.  Kupferle,  44  Mo.  154,  100  Am.  Dec.  265,  268  (1869). 


The  following  additional  cases  in  this  collection  illustrate  the  application 
of  ])roceedings  in  the  nature  of  quo  warranto :  People  ex  rel.  Lewis  v.  Waito, 
70  111.  25  (1873)  :  People  ex  rel.  Demarest  v.  Fairchild.  67  N.  Y.  .334  (1876) : 
People  ex  rel.  Raster  v.  Healy,  230  111.  280.  82  N.  E.  599,  15  L.  R.  A.  (N.  S.) 
603  (1907) ;  Dullam  v.  Willson.  53  Mich.  392,  19  N.  W.  112,  51  Am.  Rep.  128 
(18S4) ;  Wilcox  v.  People,  90  111.  186  (1878) ;  People  ex  rel.  Gere  v.  W^hitlock. 
92  N.  Y.  191  (isa3) ;  State  ex  rel.  Header  v.  Sullivan,  58  Ohio  St.  504,  51  N. 
E.  48,  65  Am.  St.  Rep.  781  (1898). 

Fr.Adm.Law — 32 


498  RELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part   2 


SECTION  GO.— HABEAS  CORPUS 


Ex  parte  WATKINS. 
(Supreme  Court  of  the  United  States,  1830.     3  Tet.  193,  7  L.  Ed.  650.) 

Marshall,  C.  J.^^  This  is  a  petition  for  a  writ  of  habeas  cor- 
pus to  bring-  the  body  of  Tobias  Watkins  before  this  court,  for  the 
purpose  of  inquiring  into  the  legaHty  of  his  confinement  in  jail.  The 
petition  states  that  he  is  detained  in  prison,  by  virtue  of  a  judgment 
of  the  Circuit  Court  of  the  United  States  for  the  county  of  Washing- 
ton, in  the  District  of  Cokmibia,  rendered  in  a  criminal  prosecution 
carried  on  against  him  in  that  court.  A  copy  of  the  indictment  and 
judgment  is  annexed  to  the  petition,  and  the  motion  is  founded  on  the 
allegation  that  the  indictment  charges  no  offense  for  which  the  prisoner 
was  punishable  in  that  court,  or  of  which  that  court  could  take  cog- 
nizance, and  consequently  that  the  proceedings  are  coram  non  judice, 
and  totally  void. 

This  application  is  made  to  a  court  which  has  no  jurisdiction  in 
criminal  cases  (United  States  v.  More,  3  Cranch,  169,  2  L.  Ed.  397), 
which  could  not  revise  this  judgment,  could  not  reverse  or  affirm  it, 
were  the  record  brought  up  directly  by  writ  of  error.  The  power, 
however,  to  award  writs  of  habeas  corpus,  is  conferred  expressly  on 
this  court  by  the  fourteenth  section  of  the  judiciary  act,  and  has 
been  repeatedly  exercised.  No  doubt  exists  respecting  the  power; 
the  question  is  whether  this  be  a  case  in  which  it  ought  to  be  exercised. 
The  cause  of  imprisonment  is  shown  as  fully  by  the  petitioner  as  it 
could  appear  on  the  return  of  the  writ ;  consequently,  the  writ  ought 
not  to  be  awarded,  if  the  court  is  satisfied  that  the  prisoner  would 
be  remanded  to  prison. 

No  law  of  the  United  States  prescribes  the  cases  in  which  this  great 
writ  shall  be  issued,  nor  the  power  of  the  court  over  the  party 
brought  up  by  it.  The  term  is  used  in  the  Constitution,  as  one  which 
was  well  understood ;  and  the  judiciary  act  authorizes  this  court, 
and  all  the  courts  of  the  United  States,  and  the  judges  thereof,  to 
issue  the  writ  "for  the  purpose  of  inquiring  into  the  cause  of  com- 
mitment." This  general  reference  to  a  power  which  we  are  re- 
quired to  exercise,  without  any  precise  definition  of  that  power,  im- 
poses on  us  the  necessity  of  making  some  inquiries  into  its  use,  ac- 
cording to  that  law  which  is  in  a  considerable  degree  incorporated 
into  our  own. 

The  writ  of  habeas  corpus  is  a  high  prerogative  writ,  known  to 
the  common  law,  the  great  object  of  which  is  the  liberation  of  those 

88  Only  a  portion  of  the  opinion  of  Marshall,  C.  J.,  is  printed. 


Ch.  8)  'ACTIONS   FOR  SPECIFIC   BELIEF.  499 

who  may  be  imprisoned  without  sufficient  cause.     It  is  in  the  nature 
of  a  writ  of  error,  to  examine  the  legaHty  of  the  commitment.     The 
EngHsh  judges^  being  originally  under  the  influence  of  the  crown, 
neglected  to  issue  this  writ,  where  the  government  entertained  sus- 
picions  which   could   not   be   sustained    by   evidence ;    and   the   writ, 
I   when  issued,  was   sometimes   disregarded  or  evaded,   and  great  in- 
dividual oppression  was  suffered,  in  consequence  of  delays  in  bring- 
ing prisoners   to  trial.     To   remedy   this   evil,  the   celebrated  habeas 
j   corpus  act  of  31  Car.  II  was  enacted,  for  the  purpose  of  securing 
.   the  benefits  for  which  the  writ  was  given.     This  statute  may  be  re- 
ferred to  as  describing  the  cases  in  which  relief  is,  in  England,  af- 
I   forded  by   this  writ  to  a   person   detained   in   custody.     It   enforces 
I  the  common  law.     This  statute  excepts,  from  those  who  are  entitled 
to  its  benefit,  persons   committed  for   felony  or  treason,  plainly  ex- 
pressed in  the  warrant,  as  well  as  persons  convicted  or  in  execution. 
'  The  exception  of  persons   convicted  applies   particularly   to  the   ap- 
i  plication    now    under   consideration.     The    petitioner    is    detained    in 
I  prison  by  virtue  of  the  judgment  of  a  court,  which  court  possesses 
i  general  and  final  jurisdiction  in  criminal  cases.     Can  this  judgment  be 
1  re-examined  upon  a  writ  of  habeas  corpus? 

I  This  writ  is,  as  has  been  said,  in  the  nature  of  a  writ  of  error, 
j  which  brings  up  the  body  of  the  prisoner,  with  the  cause  of  commit- 
]  ment.  The  court  can  undoubtedly  inquire  into  the  sufficiency  of  that 
I  cause;  but  if  it  be  the  judgment  of  a  court  of  competent  jursdic- 
ji  tion,  especially  a  judgment  withdrawn  by  law  from  the  revision  of 
'this  court,  is  not  that  judgment  in  itself  sufficient  cause?  Can  the 
court,  upon  this  writ,  look  'beyond  the  judgment,  and  re-examine  the 
'.charges  on  which  it  was  rendered?  A  judgment,  in  its  nature,  con- 
j  eludes  the  subject  on  which  it  is  rendered,  and  pronounces  the  law 
;  of  the  case.  The  judgment  of  a  court  of  record,  whose  jurisdic- 
i  tion  is  final,  is  as  conclusive  on  all  the  world  as  the  judgment  of  this 
i  court  would  be.  It  is  as  conclusive  on  this  court,  as  it  is  on  other 
1  courts.     It  puts  an  end  to  inquiry  concerning  the   fact,  by  deciding 

i  j|.^        *         ^        *   89 
t 

j  89  The  following  cases  in  this  collection  are  cases  of  habeas  corpus:  In 
ire  Sawyer,  124  U.  S.  200,  S  Sup.  Ct.  482,  31  L.  Ed.  402  (1888);  Lang:enberg 
[v.  Decker,  1.31  Ind.  471,  31  N.  E.  190.  16  L.  R.  A.  108  (1892);  Nishimnra 
t,Ekiu  V.  Ignited  States,  142  IJ.  S.  657.  12  Sup.  Ct.  33G,  35  L.  Ed.  1146  (1892) ; 
liGonzales  v.  Williams,  192  U.  S.  1.  24  Sup.  Ct.  171,  48  L.  Ed.  317  (1903)  ; 
United  States  v.  Sing  Tuck,  194  U.  S.  161,  24  Sup.  Ct.  621,  48  L.  Ed.  917 
1(1904) :  mited  States  v.  Ju  Toy,  198  U.  S.  253,  25  Sup.  Ct.  644,  49  L.  Ed. 
[1040  (190.-.)  :  Chlu  Yow  V.  United  States,  208  U.  S.  8,  28  Sup.  Ct.  201,  52 
IL.  Ed.  369   (1908). 


500  RELIEF   AGAI^'ST  ADMINISTRATIVE   ACTION.  (Part    2 


SECTION  61.— PROHIBITION 


The  principal  function  of  the  writ  of  prohibition  is  to  restrain  inferior 
courts  from  proceeding  in  matters  beyond  their  .iurisdiction.  Its  use  to  con- 
trol administrative  action  is  exceptional  and  infrequent.  See,  for  example, 
State  ex  rel.  Ellis  v.  Ellvin,  130  Mo.  90,  30  S.  W.  333,  31  S.  W.  1037  (1895); 
Speed  V.  Common  Council,  98  Mich.  360,  57  N.  W.  406,  22  L.  R.  A.  M2,  39 
Am.  St.  Rep.  555  (1894) ;  Teople  v.  Supervisors  of  Queens  County,  1  Hill  (N. 
Y.)  195,  200  (1841);  People  ex  rel.  Pressmeyer  v.  Board  of  Commissioners 
of  Police.  59  N.  Y.  92  (1874).  As  to  use  of  writ  in  South  Carolina,  see  State 
ex  rel.  Carter  v.  Burger,  1  McMul.  (S.  C.)  418  (1841),  and  State  v.  County 
Treasurer,  4  S.  C.  520,  534   (1873). 

Writ  held  not  to  lie  against  an  administrative  body.  La  Croix  v.  County 
Commissioners  of  Fairfield  County,  50  Conn.  321,  324,  47  Am.  Rep.  648 
(1882). 


SECTION    62.— JUDICIAL    DISCRETION    IN    ALLOWANCE 
OF  EXTRAORDIARY  LEGAL  REMEDIES— MANDAMUS 


PEOPLE  ex  rel.  GAS  LIGHT  CO.  v.  COMMON  COUNCIL  OF    I 
SYRACUSE.  . 

(Court  of  Appeals  of  New  York,  1879.     78  N.  Y.  50.) 

Church,  C.  J."'^  This  is  an  appeal  from  a  judgment  denying  a  j 
mandamus  to  compel  the  common  council  of  the  city  of  Syracuse  to  ' 
proceed  to  the  assessment  and  collection  of  a  tax  sufficient  to  pay 
the  relator  and  another  property  owner  the  appraised  value  of  lands 
proposed  to  be  taken  for  street  purposes.  The  commissioners  ap- 
pointed to  appraise  the  value  of  the  lands  filed  their  report  Decem- 
ber IL  1871,  and  on  October  13,  1873,  the  common  council  passed  a 
resolution  rescinding  the  original  resolution  to  widen  the  street  and 
condemn  lands  therefor,  and  declared  that  all  proceedings  taken  pur- 
suant thereto  were  abandoned  and  discontinued.  The  application  for 
a  mandamus  was  made  June  29,  1875. 

The  two  material  questions  presented  are :  First.  Whether  the 
common  council  had  the  legal  right  as  against  the  property  owners 
to  discontinue  the  proceedings.  Second.  If  this  should  be  deter- 
mined in  the  negative,  whether  the  lapse  of  time  and  other  circum- 
stances justified  the  judgment  refusing  a  mandamus.      [The  discus- 

9  0  Only  a  portion  of  the  opinion  of  Church,  C.  J.,  is  printed. 


Ch.  8)  ACTIONS  FOR  SPECIFIC   RELIEF.  501 

sion  of  the  first  question  is  omitted.     The  court  concluded  that  the 
rescinding  resolution  was  void.] 

As  to  the  question  whether  the  court  below  was  justified  in  refus- 
ing a  mandamus  on  account  of  the  lapse  of  time  which  intervened, 
there  is  more  embarrassment.  The  writ  of  mandamus  is  called  a 
prerogative  writ.  It  originated  from  a  necessity  to  furnish  a  remedy 
to  compel  the  performance  of  a  specific  duty,  in  cases  where  the  ordi- 
nary forms  of  legal  procedure  furnished  no  adequate  remedy,  and  is- 
sued by  the  exercise  of  the  sovereign  power  of  the  king,  who  origi- 
nally sat  in  the  King's  Bench  in  person.  1  Bl.  Com.  239.  As  this  exer- 
cise of  power  could  not  be  controlled,  the  issuing  of  the  writ  was  nec- 
I  essarily  discretionary,  and  [it]  was  liable  to  be  issued  or  refused  as  the 
I    king  might  see  fit. 

When  the  power  became  vested  in  the  courts  of  England,  and  when 
transmitted  to  our  own  courts,  it  has  been  and  is  still  regarded  as  dis- 
cretionary, as  distinguished  from  a  writ  of  right.     But  although  in 
'    this  sense  discretionary  in  the  court  to  grant  or  refuse  this  remedy, 
!    yet  it  is  not  an  absolute  and  arbitrary  discretion,  but  the  power  is  to 
be  exercised,  and  may  be  regulated  and  controlled  by  certain  rules  of 
law  dictated  by  experience,  and  incorporated  into  our  system  of  judi- 
cature.    Fish  V.  Weatherwax,  2  Johns.  Cas.  215,  note,  and  cases  cited. 
The   distinction   between   an   absolute   discretion,   and   that   which   is 
i    governed  by  legal  rules,  is  well  recognized.     The  former  is  not  re- 
viewable ;  the  latter  is.    Howell  v.  Mills,  53  N.  Y.  322.    This  case  be- 
I   longs  to  the  latter  class.     There  must  be  a  clear  legal  right.     We 
have  seen  that  such  right  existed.     There  must  be  no  other  adequate 
'.   .remedy.     It  is  not  disputed  that  such  was  the  fact. 
!       It  is  insisted  that  the  relator  has  lost  his  right  by  delay.     Some  de- 
I   lay  was  necessary.     The  commissioners   were  to  be  put  in  motion, 
,   local  assessments,  and  perhaps  general  assessments,  were  to  be  made, 
1   perfected,  and  collected,  and  this  would  occupy  an  indefinite  period 
I  of  time.     How  long  does  not  appear.     The  case  seems  to  have  been 
I   tried  upon  the  pleadings,  and  it  was  alleged  that  the  relator  had  of- 
I  ten  requested  the  common  council  to  make  the  assessment.     It  no- 
!  where  appears  what  answer  was  made  to  these  applications,  whether 
the  council  refused,  or  promised  performance,  so  that  up  to  the  pe- 
j  riod  of  the  resolution  of  abandonment  there  is  nothing  in  the  case 
;  to  show  a  want  of  vigilance  on  the  part  of  the  relator  or  any  indis- 
!  position  on  the  part  of  the  common  council  to  perform  their  duty. 
But  after  that  it  is  argued  that  from  the  lapse  of  time  before  apply- 
ing for  the  writ,  about  twenty  months,  it  may  be  inferred  that  the 
1  relator  acquiesced  in  the  abandonment,  and  it  is  laid  down  as  a  rule 
I  that  a  party  must  not  sleep  upon  his  rights.     There  would'  be  some 
;  force  in  this  position  if  it  appeared  that  the  relator  knew  of  this  ac- 
!  tion  of  the  common   council ;    but   this    fact   is   neither   alleged,   nor 
j  proved.     I  have  been  unable  to  find  any  authority   for  the  position 


502  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part   2 

that  a  mere  delay  of  this  character  has  been  fatal  to  the  right  of  a 
party  to  this  remedy,  when  a  clear  legal  and  substantial  right  has 
been  shown.     *     *     * 

When  the  relator  has  for  an  unreasonable  time  slept  upon  his  I 
rights,  the  court  may  in  the  exercise  of  a  sound  discretion  refuse  the 
writ.  In  determining  what  will  constitute  such  unreasonable  delay, 
regard  should  be  had  to  circumstances  which  justify  the  delay,  to 
the  nature  of  the  case  and  the  relief  demanded,  and  to  the  question 
whether  the  rights  of  the  defendant  or  of  other  persons  have  been 
prejudiced  by  such  delay.  Chinn  v.  Trustees,  32  Ohio  St.  236.  The 
difficulty  with  the  case  on  the  part  of  the  defendant  is  that  no  facts 
were  shown  which  would  justify  a  refusal  of  the  writ,  except  a  de- 
lay which  may  in  part  at  least  have  been  caused  by  the  defendant. 
There  is  nothing  to  show  but  that  the  plaintiff  supposed  that  the  pro- 
ceedings were  progressing,  or  that  he  thought  an  abandonment  was 
contemplated,  nor  any  change  of  circumstances  shown,  rendering  the 
consummation  of  the  improvement  impracticable  or  specially  injuri- 
ous to  the  defendant  or  individuals.  That  question  seems  not  to  have 
been  litigated  on  the  trial.  The  circumstances  should  be  shown  which 
according  to  established  rules  justify  a  refusal  of  the  writ. 

In  King  v.  Canal  Co.,  1  M.  &  C.  35,  there  was  delay,  and  another 
remedy.  In  King  v.  Commissioners,  20  Eng.  Com.  Law,  525,  there 
was  delay,  and  the  issuing  of  the  writ  would  have  been  prejudicial 
to  the  intervening  private  rights  of  others,  and  in  all  the  cases  cir- 
cumstances appeared  which  according  to  settled  rules  of  public  poli- 
cy warranted  a  refusal  of  the  writ.  2  Crary's  Prac.  51,  52,  and  cases 
cited;   5  Wait's  Prac.  552. 

When  the  relator  shows  a  fixed  legal  right  to  compensation  for 
lands  condemned  for  public  purposes,  a  mere  delay  of  the  character 
appearing  in  this  case  is  not  sufficient  to  deprive  him  of  the  right. 
People  V.  Board  of  Supervisors,  12  Barb.  446.  The  nature  of  the 
case  is  such  that  circumstances  may  exist  rendering  it  improper  to 
grant  the  writ,  but  no  such  facts  appeared.  A  new  trial  may  develop 
them. 

We  do  not  deem  it  necessary  to  notice  the  other  points.  *  *  * 
As  the  case  appeared,  we  think  it  was  error  to  refuse  the  writ. 

The  judgment  must  be  reversed,  and  a  new  trial  granted,  costs  to 
abide  event.    All  concur,  except  Andrews^  J.,  absent. 

Judgment  reversed. °^ 

91  See,  also,  PeopLe  ex  rel.  Stettaiier  v.  Olsen,  215  111.  G20,  74  N.  E.  7&5 
(1905). 


Ch.  8)  ACTIONS   FOR  SPECIFIC   RELIEF.  50c 


SECTION  G3.— SAME— CERTIORARI 


PEOPLE  ex  rel.  CHURCH  v.  ALLEGANY  COUNTY  SUP'RS. 

(Supreme   Court   of  New  York,   183G.     15   Wend.   198.) 

Certiorari  to  county  board  of  supervisors. 

Bronson,  J.^-  *  *  '■-  The  question,  then,  involved  in  this  pro- 
ceeding, is  whether  the  tax  Hsts  of  the  several  towns  in  the  county  of 
Allegany,  in  which  the  relator  was  assessed  in  the  year  1832,  and 
the  warrants  issued  to  the  collectors,  shall  be  quashed  and  annulled 
for  irregularity.  What  would  be  the  probable  consequences  of  such 
a  judgment  as  we  are  asked  to  pronounce?  How  many  hundreds  of 
suits  would  it  authorize  against  each  of  the  twenty-six  supervisors, 
who  are  defendants,  and  what  would  be  the  condition  of  the  several 
officers  who  have  collected  the  tax?  If  the  relator  has  a  right  to 
prosecute  the  writ  ex  debito  justitise,  these  inquiries  should  have  no 
influence  upon  the  disposition  which  is  to  be  made  of  the  cause.  The 
court  must  pronounce  its  judgment,  and  leave  the  consequences  to 
others.  But  if,  in  awarding  writs  of  this  description,  the  court  is  to 
exercise  a  sound  legal  discretion,  and  grant  or  refuse  the  process  as 
the  ends  of  justice  and  the  public  interest  may  require,  we  are  not  at 
liberty  to  shut  our  eyes  to  the  consequences  which  may  follow  from 
entertaining  this  proceeding.  It  is  not  necessary  to  decide  that  ac- 
tions could  be  maintained,  either  against  the  supervisors  or  the  col- 
lectors, in  the  event  of  a  judgment  in  favor  of  the  relator.  It  is 
enough  that  such  suits  would  probably  be  brought,  and  it  is  not  en- 
tirely clear,  to  say  the  least,  that  they  could  not  be  maintained. 

In  the  exercise  of  the  superintending  power  of  this  court  over  in- 
ferior jurisdictions,  the  writ  of  error  is  a  writ  of  right,  and  issues 
on  conforming  to  such  regulations  as  have  been  prescribed  by  law. 
But  the  writ  of  certiorari,  especially  in  those  cases  where  it  is  used 
for  the  purpose  of  reviewing  the  acts  and  decisions  of  the  special  ju- 
risdictions which  are  created  by  statute,  and  do  not  proceed  accord- 
ing to  the  course  of  the  common  law,  such  as  boards  of  supervisors, 
commissioners  of  highways,  and  the  like,  does  not  issue  ex  debito 
justitise.  but  only  on  application  to  the  court  and  special  cause  shown. 
The  reason  is  that  these  bodies  exercise  powers  in  which  the  people 
at  large  are  concerned,  and  great  public  detriment  or  inconvenience 
might  result  from  interfering  with  their  proceedings.  The  writ  can- 
not be  allowed  by  a  judge  at  chambers,  but  only  by  the  court  itself. 
Starr  v.  Trustees  of  Rochester,  6  Wend.  565  ;  Comstock  v.  Porter,  5 
Wend.  98;    Albany  Water  Works  Co.  v.  Mayor's  Court,  12  Wend. 

9  2  Only  a  portion  of  the  opinion  of  Bronson,  J.,  is  printed. 


504  RELIEF  AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

292.  In  The  King  v.  Eaton,  2  T.  R.  89,  on  a  motion  for  a  writ  to 
remove  a  conviction  before  a  justice  of  the  peace,  Buller,  J.,  said  that 
the  rule  requiring  the  defendant  to  lay  a  ground  before  the  court 
for  granting  a  certiorari  had  obtained  since  the  time  of  Charles  II, 
and  he  cited  a  case  of  that  day,  where  it  was  held  as  clear  law  that 
a  certiorari  ought  not  to  be  granted  in  vacation,  but  in  open  court, 
and  upon  a  ground  shown.  Commonwealth  v.  Downing,  G  Mass.  72  ; 
State  V.  Vandcrveer,  7  N.  J.  Law,  38. 

In  Arthur  v.  Commissioners  of  Sewers,  8  Mod.  331,  it  was  re- 
marked by  one  of  the  judges  that  "a  writ  of  certiorari  was  not  a 
writ  of  right,  for  if  it  was  it  could  never  be  denied  to  grant  it ;  but 
it  has  often  been  denied  by  this  court,  who,  upon  consideration  of  the 
circumstances  of  the  case,  may  deny  it,  or  grant  it  at  discretion." 
And  Bacon  (Abr.  tit.  "Certiorari,"  A)  says,  although  the  writ  ought  of 
right  to  be  issued  at  the  instance  of  the  king,  for  the  purpose  of  re- 
moving an  indictment,  yet  the  court  "has  a  discretionary  power  in 
granting  or  refusing  it  at  the  suit  of  the  defendant."  He  cites  cases 
in  which  the  court  has  refused  to  grant  the  writ.  In  Ludlow  v.  Lud- 
low, 4  N.  J.  Law,  387,  Kirkpatrick,  C.  J.,  says  the  very  issuing  of 
such  a  writ  is  the  exercise  of  a  high  judicial  power,  and  must,  in  its 
nature,  be  discretionary.  In  Lees  v.  Childs,  17  Mass.  351,  it  was  held 
that  an  application  for  c  certiorari  was  addressed  to  the  discretion  of 
the  court,  and  would  not  be  granted,  but  on  showing  probable  cause 
for  supposing  that  injustice  has  been  done.  In  Ex  parte  Weston  and 
Others,  11  Mass.  417,  the  court  held  the  same  doctrine;  and  although 
that  was  a  case  which  did  not  affect  the  public,  but  the  rights  of  in- 
dividuals only,  the  court  said  that  before  granting  a  certiorari  they 
would  always  look  into  the  record,  and  even  into  the  circumstances 
attending  the  process,  "because,  when  the  record  is  actually  returned, 
in  obedience  to  the  writ  of  certiorari,  they  are  bound  to  quash  the 
whole  proceeding,  if  error  should  appear."     -''     *     *  ^'-^ 


INHABITANTS    OF   RUTLAND    v.    WORCESTER    COUNTY 
COM'RS. 

(Supreme  Judicial  Court  of  Massacliusetts,  1S38.     20  Piclc.  71.) 

Per  Curiam.''*  *  *  *  ^  petition  for  ?,  writ  of  certiorari  is 
well  understood  to  be  addressed  to  the  discretion  of  the  court.  When 
the  record  is  before  the  court  upon  the  return  of  the  writ,  the  court 
will  look  only  at  the  record.     For  this  reason  it  would  be  futile  to 

93  Accord:  People  ex  rel.  Vanderbilt  v.  Stilwell,  19  N.  Y.  .531  (1859); 
People  ex  rel.  David  v.  Hill,  53  N.  Y.  547  (1873)  ;  People  ex  rel.  Corvvin  v. 
Walter,  68  N.  Y.  408  (1877) ;  People  ex  rel.  Waldman  v.  Board  of  Police 
Com'rs,  82  N.  Y.  506   (1880). 

9  4  Only  a  portion  of  the  opinion  is  printed. 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  505 

admit  evidence  to  contradict  the  record,  on  the  petition  for  a  certio- 
rari ;  but,  it  being  within  the  discretion  of  the  court  to  grant  or  refuse 
the  writ,  evidence  extrinsic  to  the  record  may  very  properly  be  re- 
ceived, to  show  that  no  injustice  has  been  done,  and  that  a  certiorari 
ought  not  to  be  issued.  The  petitioners  in  the  case  before  us  will  in 
the  first  place  exhibit  the  record  and  point  out  in  what  particulars 
they  deem  it  to  be  erroneous  or  defective ;  and  then  the  respondents 
may  prove  by  extrinsic  evidence  that  no  injustice  has  been  done,  that 
if  the  proceedings  shall  be  quashed  the  parties  cannot  be  placed  in 
statu  quo,  or  that  for  any  good  reason  a  certiorari  ought  not  to  be 
granted.  If  such  evidence  shall  be  offered  by  the  respondents,  the 
petitioners  will  of  course  have  a  right  to  rebut  it  by  like  evidence. 


TRUSTEES  OF  SCHOOLS  OF  TOWN  21  N.,  RANGE  5  W.  v. 
SCHOOL  DIRECTORS  OF  UNION  DISTRICT. 

(Supreme  Court   of    lUiuois,    1878.     88   111.    100.) 

Mr.  Chief  Justice  ScholfiEld  delivered  the  opinion  of  the  court. 

The  only  question  we  deem  it  necessary  to  consider  in  the  pres- 
ent case  is  whether  appellee  should  be  held  to  be  barred  from  in- 
quiring into  the  validity  of  the  act  of  detaching  territory  from  the 
one  school  district  and  adding  it  to  the  other,  by  reason  of  the  laches 
in  suing  out  the  certiorari. 

The  writ  of  certiorari,  when  used  for  the  purpose  of  correcting 
the  proceedings  of  inferior  tribunals,  is  not  a  writ  of  right;  but  it 
issues  only  upon  application  to  the  court,  upon  special  cause  shown. 
Bath  Bridge  Co.  v.  Magoon,  8  Greenl.  (Me.)  293;  Drowne  v.  Stimp- 
son,  2  Mass.  441;  Lees  v.  Childs,  17  Mass.  352;  Huse  v.  Gaines,  2 
N.  H.  210 ;  Munro  v.  Baker,  6  Cow.  (N.  Y.)  396 ;  People  v.  Super- 
visors, 15  Wend.  (N.  Y.)  198;  State  v.  Senft,  2  Hill  (S.  C.)  367; 
Rockingham  v.  Westminster,  24  Vt.  288.  And  the  reason  is  said  to 
be  because  these  bodies  exercise  powers  in  which  the  people  at  large 
are  concerned,  and  great  public  detriment  or  inconvenience  might  re- 
sult from  interfering  with  their  proceedings.  People  v.  Supervi- 
sors, supra.  As  a  corollary  it  follows  that,  whenever  great  public 
detriment  or  inconvenience  might  result  from  interfering  with  their 
proceedings,  the  writ  of  certiorari  should  be  denied.  And,  on  this 
principle,  in  Elmendorf  v.  Mayor,  etc.,  25  Wend.  693,  the  Supreme 
Court  of  New  York  refused  a  certiorari  to  remove  the  proceedings 
of  the  common  council  of  New  York,  changing  the  grade  of  certain 
streets,  three  years  and  a  half  after  the  confirmation.  It  is  true,  in 
that  state  a  writ  of  error  would  not  lie,  under  the  statute,  after  the 
expiration  of  two  years,  and  it  was  said  the  court  would,  by  analog)- 

95  Accord:    Hyslop  v.  Finch,  99  111.  Ill,  179  (1881). 


506  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    3 

to  the  statute,  in  ordinary  cases,  refuse  a  certiorari  after  the  lapse 
of  that  period ;  but  the  decision  was  placed  expressly  upon  the  ground 
that  there  had  been  unreasonable  delay,  and  that  serious  consequences 
to  the.  city  must  result  from  allowing-  the  writ.  Nelson,  C.  J.,  who 
delivered  the  opinion  of  the  court,  said:  "I  place  my  refusal  to  allow 
the  certiorari  upon  the  unreasonable  delay  in  the  application  for  it, 
and  the  serious  consequences  to  the  city  which  must  necessarily  fol- 
low the  granting  of  it  after  such  a  lapse  of  time,  during  which  the 
improvement  has  been  finished,  and  two-thirds  of  the  assessment 
paid  by  owners."  This  principle  is  also  recognized  and  applied  in 
Rutland  v.  County  Com'rs,  etc.,  20  Pick.  (Mass.)  79,  80 ;  In  re  Lan- 
tis  et  al.,  9  Mich.  324,  80  Am.  Dec.  58 ;  Chamberlain  v.  Berclay,  13 
N.  J.  Law,  244;  Bell  v.  Overseers,  14  N.  J.  Law,  131;  Dailey  v. 
Bertholomew,  1  Ashm.  (Pa.)  135. 

It  is  not  questioned  but  that  there  was  power  to  detach  territory 
from  the  one  district  and  add  it  to  the  other;  but  it  is  only  objected 
that  the  power  had  not  been  exercised  by  the  proper  officers  in  the 
mode  prescribed  by  the  statute.  It  would,  therefore,  seem  very  clear 
that  the  omission  complained  of  is  one  that  would  have  been  sup- 
plied by  a  subsequent  express  ratification  of  the  act,  and,  if  this  be 
true,  we  know  of  no  reason  why  in  this,  as  in  many  other  instances 
of  defective  execution  of  powers  by  corporations,  a  ratification  may 
not  be  inferred  from  acquiescence.  In  Metz  et  al.  v.  Anderson  et 
al.,  23  111.  469,  76  Am.  Dec.  704,  this  court,  arguendo,  said:  "But  if 
it  could  be  shown  that  the  order  changing  the  districts,  by  consoli- 
dating two  districts  into  one,  was  an  unwarrantable  exercise  of  pow- 
er, it  might,  with  propriety,  be  claimed  that  there  has  been  an  ac- 
quiescence in  it  by  the  functionaries  of  the  now  complaining  district 
!»."'  In  this  view,  the  doctrine  of  the  cases  above  referred  to  must  be 
held  to  be  conclusive  in  the  present  case. 

The  petition  here  was  filed  July  15,  1875,  and  the  action  of  the 
trustees  complained  of  was  had  in  April,  1872,  over  three  years  be- 
fore. A  proper  plat  of  the  districts,  as  constituted  after  the  changes 
efifected  by  the  action  of  the  board,  was  made  and  filed  with  the  coun- 
ty clerk  at  the  time;  and  thereafter  the  school  funds  were  appor- 
tioned in  accordance  with  such  changes,  and  the  presumption  is  that 
taxes  for  school  purposes  were  thus  levied  and  collected.  It  may  be, 
also,  that  debts  have  been  incurred  in  building  or  repairing  school 
houses,  or  for  other  legitimate  school  purposes,  upon  the  faith  of  the 
action  of  the  trustees,  now  for  the  first  time  sought  to  be  questioned. 

The  case,  in  our  opinion,  is  clearly  one  where,  by  reason  of  the 
lapse  of  time  and  the  acquiescence  of  the  party  now  complaining  in 
the  distribution  of  school  funds,  the  levy  and  collection  of  school 
taxes,  and,  possibly,  the  incurring  of  debts,  upon  the  faith  of  the  ac- 
tion of  the  trustees,  it  was  improper  to  allow  the  writ;  but,  having 
been  allowed,  it  should  have  been  quashed,  on  motion. 

It  is  better,  if  it  shall  be  desirable,  by  appropriate  steps  through  the 


Cll.  8)  ACTIONS  FOR   SPECIFIC   RELIEF.  507 

])roper  school  officers,  to  reorganize  the  districts  as  they  were  before, 
than  to  open  up  an  indefinite  field  of  strife  and  litigation  by  now 
nullifying  the  action  of  the  trustees,  and  thereby  declaring  everything 
done  pursuant  thereto  illegal. 

Some  question  was  made  in  argument  as  to  the  right  to  consider 
this  question  on  appeal,  but  we  presume  not  seriously,  since  the  right 
of  appeal  now  exists,  by  statute,  from  all  final  judgments. 

It  is  true  the  court  below  was  invested  with  discretion,  to  some  ex- 
tent, whether  to  grant  or  to  refuse  the  writ;  but  that  discretion  did 
not  authorize  the  granting  of  the  writ  in  a  case  where,  by  law,  it 
clearly  ought  not  to  have  been  granted.  The  discretion  was  not  an 
arbitrary  one,  but  one  to  be  exercised  in  subordination  to  legal  prin- 
ciples, and  we  may  always  inquire  whether  those  principles  have  been 
adhered  to  or  departed  from.    The  judgment  is  reversed. 

Judgment  reversed. °° 


SECTION  G4.— SAME— OUO  WARRANTO 


PEOPLE  ex  rel.  LEWIS  v.  WAITE. 
(Supreme  Court  of  Illinois,  1873.     70  lU.  2.").) 

Appeal  from  the  criminal  court  of  Cook  county ;  Lambert  Tree, 
Judge. 

This  was  an  application  by  the  state's  attorney  for  leave  to  file 
an  information  of  the  relator,  in  the  nature  of  a  quo  warranto,  against 
George  W.  Waite.  The  opinion  of  the  court  gives  a  summary  state- 
ment of  the  case  and  the  facts.     The  relator  appealed. 

Mr.  Justice  ScoTT  delivered  the  opinion  of  the  court. 

Our  statute,  in  relation  to  informations  in  the  nature  of  a  quo 
warranto,  is  a  substantial,  if  not  a  literal,  copy  of  9  Anne,  c.  20,  on 
the  same  subject.  The  granting  of  leave  to  file  such  informations 
has  uniformly  been  held,  both  in  this  country  and  in  England,  to  be 
within  the  sound  discretion  of  the  court.  LyCave  is  not  given  as  a 
matter  of  course,  but  a  court  ought  not  arbitrarily  to  refuse  leave, 
but  should  exercise  a  sound  discretion,  according  to  law.  Dillon  on 
^lun.  Corp.  §  722;  State  v.  Tehoe,  7  Rich.  346;  Commonwealth  v. 
Arrison,  15  Serg.  &  R.  (Pa.)  133,  16  Am.  Dec.  531;  People  v. 
Sweeting,  2  Johns.  (N.  Y.)  184 ;  King  v.  Hythe,  6  Barn.  &  Cres.  247 ; 
King  V.  Peacock,  4  Term  R.  684;    King  v.  Stacy,  1  Term  R.  1. 

The  mode  for  instituting  such  proceedings  is,  usually,  as  pursued  in 
the  case  at  bar.  The  state's  attorney  submitted  a  motion,  based  on 
affidavit,  for  leave  to  file  an  information  in  the  nature  of  a  quo  war- 
s'^ Accord:    Chicago  V.  Condell,  224  111.  595,  79  N.  E.  954  (1906). 


508  RELIEF   AGAINST   ADMINISTRATIVE   ACTION,  (Part    2 

ranto.  A  rule  nisi  was  laid  on  defendant  to  show  cause  why  the  in- 
formation should  not  be  filed.  Respondent  answered  the  rule  by 
counterafifidavits.  This  practice  is  warranted  by  the  authorities. 
People  V.  Shaw,  14  111.  47G ;  King  v.  Symons,  4  Term  R.  221 ;  People 
V.  Tibbets,  4  Cow.  (N.  Y.)  383;  People  v.  Richardson,  4  Cow.  (N. 
Y.)  103  and  notes. 

For  cause  shown,  the  court  no  doubt  has  a  discretion  to  grant 
or  refuse  the  leave  asked,  according  to  the  circumstances.  Relator 
claims  he  was,  in  a  legal  manner,  elected  school  trustee  for  town- 
ship 38,  and  that  respondent  has  usurped  that  office,  and  now  holds  it, 
and  is  exercising  its  functions  without  authority  of  law.  The  affi- 
davit shows  respondent  was  himself  elected  to  that  office,  by  the  qual- 
ified voters  of  the  town. 

It  is  insisted,  however,  the  election  was  void,  for  the  reason  it 
was  not  held  at  the  place  designated  in  the  notices  required  by  law 
to  be  posted  prior  to  holding  the  election.  The  counteraffidavits 
show  relator  participated  in  the  election  he  now  seeks  to  have  de- 
clared void,  by  voting  thereat,  and  was  himself  an  opposition  can- 
didate to  respondent.  Relator  knew  then,  as  well  as  now,  what  ir- 
regularities had  intervened  in  the  conduct  of  the  election,  and  he 
ought  not  to  be  permitted  to  disturb  the  public  welfare  by  having 
an  election  declared  void  in  which  he  participated  with  a  full  knowl- 
edge of  all  irregularities  that  existed.  A  sound  public  policy  for- 
bids it.  The  only  informality  charged  is  the  election  was  held  at  an 
improper  place.  This  fact  was  known  to  relator.  He.  uttered  no 
complaint  at  the  time,  but  submitted  his  claims  to  the  office  to  the 
voters  of  the  town  voting  at  that  place,  and  claimed  the  right  to 
and  did  have  his  own  vote  recorded. 

These  facts  make  it  inequitable  that  he  should  have  the  remedy 
sought,  and  the  court,  in  the  exercise  of  a  sound,  legal  discretion, 
properly  discharged  the  rule.  The  judgment  must  therefore  be  af- 
firmed. 

Judgment  affirmed. 


PEOPLE  ex  rel.  DEMAREST  v.  FAIRCHILD,  Atty.  Gen. 
(Court  of  Appeals  of  New  York,  1S70.     07  N.  Y.  ,334.) 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court 
in  the  Third  Judicial  Department,  affirming  an  order  of  Special  Term, 
which  denied  a  motion  for  a  writ  of  peremptory  mandamus.  Re- 
ported below,  8  Hun,  334. 

The  relators  alleged  that  they  were  duly  elected  aldermen  and  as- 
sistant aldermen  of  the  city  of  New  York,  pursuant  to  the  city  char- 
ter, and  took  the  oath  of  office ;  that  the  boards  of  aldermen  and  as- 
sistant aldermen  duly  organized  as  such,  but  that  the  mayor  refused 
to  recognize  them;   that  the  act  (chapter  335,  Laws  1873)  abolishing 


Ch.  8)  ACTIONS   FOR   SPECIFIC    RELIEF.  509 

tlie  board  of  assistant  aldermen  and  establishing  what  is  termed  the 
minority  system  of  electing  the  board  of  aldermen  was  unconstitu- 
tional; that  Samuel  Lewis  and  others,  claiming  to  have  been  elected 
aldermen  under  said  act,  organized  themselves  as  a  board  of  alder- 
men, were  recognized  by  the  mayor,  and  are  pretending  to  discharge 
the  duties  of  the  office;  and  that  the  Attorney  General  has  refused 
to  bring  an  action  to  determine  the  title  to  the  office.  The  motion 
was  for  a  writ  of  mandamus  requiring  him  to  commence  and  prose- 
cute such  an  action. 

Allen,  J.  The  language  of  the  statute  authorizing  actions  in  the 
nature  of  a  quo  warranto  to  try  the  title  to  office  is  very  guarded, 
and  does  not  give  the  action  as  of  right  to  every  individual  who  may 
think  that  an  office  to  which  he  has  been  legally  chosen  or  appointed 
has  been  usurped  by  another,  or  who  may  volunteer  to  become  an 
informer.  It  says  the  action  "may  be  brought  by  the  Attorney  Gen- 
eral" upon  his  own  information  or  upon  the  complaint  of  any  pri- 
vate party.  Code,  §  432.  Prior  to  the  Revised  Statutes  leave  of  the 
Supreme  Court  was  required  for  the  institution  of  proceedings  of 
this  character.  1  Rev.  Laws,  108,  §  4.  Under  that  system,  the 
court  in  this  state  exercised  a  sound  discretion  in  granting  or  with- 
holding leave  to  file  an  information  in  the  nature  of  a  quo  warranto. 
People  V.  Sweeting,  2  Johns.  184.  A  like  discretion  was  exercised 
by  the  courts  in  England  under  similar  statutes.  Rex  v.  Sargent, 
5  T.  R.  4G7.  By  the  Revised  Statutes,  the  necessity  of  an  applica- 
tion to  the  court  was  dispensed  with  and  the  discretion  before  then 
vested  in  the  court  was  transferred  to  and  vested  in  the  Attorney 
General,  whose  province  it  was  at  the  common  law  to  determine 
whether  a  case  had  arisen  in  which  the  public  interests  required  the 
proceedings  to  be  instituted.  2  Rev.  St.  581,  §  28;  Rev.  Notes,  5 
Stat.  olG. 

The  primary  object  of  the  action  is  to  protect  the  public  against  the 
usurpation  of  office  without  legal  authority,  and  the  determination 
of  the  right  of  another  to  the  same  office  is  merely  an  incident  to 
the  action,  and  is  permitted  for  the  reason  that  ordinarily  the  judi- 
cial ouster  of  the  incumbent  in  efifect  establishes  the  right  of  the 
adverse  claimant  to  the  office,  and  if  the  Attorney  General  brings  an 
action  to  eject  an  alleged  usurper  from  an  office,  he  may  be  compelled 
to  join  with  the  people,  as  plaintiff,  the  name  of  the  person  on  whose 
relation  the  action  is  brought.  Code,  §  434.  He  has  a  discretion 
whether  he  will  bring  the  action,  but  not  as  to  the  proper  parties  if 
an  action  is  brought.  It  is  evident  that  the  Legislature  used  the 
words  "may"  and  "shall"  intelligently  and  with  a  purpose,  and  that 
no  positive  duty  is  imposed  upon  the  Attorney  General  to  bring  an 
action  upon  request  of  a  party  claiming  office  from  which  he  is  ex- 
pelled. The  statute  does  not  give  the  individual  claiming  the  office 
or  any  other  person  the  legal  right  to  compel  an  action  to  be  brought  by 
the  law  officer  of  the  state,  or  to  bring  an  action  in  the  name  of  the 


510  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

people.  The  control  over  the  action  and  the  right  to  bring  it  is  with 
the  Attorney  General,  and  the  courts  cannot  sit  in  judgment  upon 
the  exercise  of  his  discretion  or  coerce  his  action.  The  language 
of  the  act  is  very  circumspect  and  "precludes  the  idea  that  the  Legis- 
lature intended  to  subject  the  action  of  the  Attorney  General  in  a  mat- 
ter thus  affecting  the  public  interest  to  the  dictation  of  individual  in- 
terests or  to  judicial  reviews.  Ji-^dge  Harris,  in  a  well-considered 
opinion  (reported  as  People  v.  Attorney  General,  23  Barb.  114). 
shows  that  a  mandamus  will  not  lie  to  compel  the  Attorney  General 
to  commence  an  action  in  the  nature  of  a  quo  warranto  at  the  in- 
stance of  a  claimant  of  the  office  in  dispute. 

The  counsel  for  the  relators  concedes  that  the  doctrine  that  the 
right  to  decide  whether  a  quo  warranto  should  issue  is  vested  in  the 
Attorney  General  may  be  sound  when  two  officers  claim  under  the 
same  system  conceded  to  be  constitutional,  but  contends  that  inas- 
much as  the  relators  do  not  claim  the  seats  of  the  intruders,  but  for  a 
restoration  of  what  they  claim  to  be  the  constitutional  government 
of  New  York  City,  and  that  they  are  entitled  to  distinct  offices  un- 
der the  form  of  government  attempted  to  be  abrogated,  the  deter- 
mination of  that  official  is  not  final,  but  their  right  to  his  interven- 
tion by  action  is  absolute.  It  would  seem  that  in  this  view  any  citi- 
zen would  have  an  equal  right  -^itli  the  relators  to  inaugurate  an 
action  to  test  the  constitutionality  of  the  law  under  which  the  city 
officials  hold  office.  The  constitutionality  of  the  law  can  be  tested 
when  the  question  properly  arises  in  an  action  in  which  it  becomes 
material,  but  the  Attorney  General  cannot  be  compelled  to  bring  an 
action  merely  for  the  settlement  of  that  question.  But  the  right  of 
the  relators  is  not  affected  by  the  questions  of  law  or  of  fact  upon 
which  they  propose  to  test  the  right  of  the  incumbents  to  their  of- 
fices, and  the  case  is  not  distinguished  favorably  to  the  relators 
from  People  v.  Attorney  General,  supra.  The  Attorney  General  may 
have  erred  in  judgment,  and  for  this  there  is  no  remedy.  If  he  has 
acted  corruptly  or  from  unworthy  motives,  and  the  legal  rights  of 
the  relator  have  been  prejudiced,  this  is  not  an  appropriate  remedy. 

The  order  must  be  affirmed.     All  concur. 

Order  affirmed. 


PEOPLE  ex  rel.  RASTER  v.  HEALY,  State's  Atty. 

(Supreme  Court  of  Illinois,  1907.     230  111.  280,  82  N.  E.  599,  15  L.  R.  A. 
[N.  S.]  G03.) 

Appeal  from  Circuit  Court,  Cook  County. 

Mandamus,  by  the  People,  on  the  relation  of  Edwin  O.  Raster,  to 
compel  John  J.  Healy,  as  State's  Attorney,  to  sign  a  petition  for  leave 
to  file  an  information  in  the  nature  of  a  quo  warranto.    From  a  judg- 


Ch.  8)  ACTIONS   FOR  SPECIFIC   RELIEF.  511 

ment  for  respondent,  petitioner  appeals.  Reversed  and  remanded, 
with  directions. 

ScoTT,  J.^'  This  controversy  involved  the  construction  of  section 
1  of  chapter  112  of  Kurd's  Revised  Statutes  of  1905,  which  reads: 
"That  in  case  any  person  shall  usurp,  intrude  into,  or  unlawfully  hold 
or  execute  any  office  or  franchise,  or  any  office  in  any  corporation 
created  by  authority  of  this  state,  *  *  *  the  Attorney  General  or 
state's  attorney  of  the  proper  county,  either  of  his  own  accord  or  at 
the  instance  of  any  individual  relator,  may  present  a  petition  to  any 
court  of  record  of  competent  jurisdiction,  or  any  judge  thereof  in 
vacation,  for  leave  to  file  an  information  in  the  nature  of  a  quo  war- 
ranto in  the  name  of  the  people  of  the  state  of  Illinois,  and  if  such 
court  or  judge  shall  be  satisfied  that  there  is  probable  ground  for  the 
proceeding,  the  court  or  judge  may  grant  the  petition,  and  order  the 
information  to  be  filed  and  process  to  issue.     *     *     *  " 

It  is  contended  by  the  appellee  that  this  statute  vests  the  state's  at- 
torney of  the  proper  county  with  an  arbitrary  discretion  in  reference 
to  seeking  leave  to  file  an  information  in  the  nature  of  a  quo  warran- 
to in  the  name  of  the  people,  that  in  the  exercise  of  that  discretion 
he  cannot  be  controlled  by  the  courts,  and  that  he  may  refuse  to  seek 
the  leave  for  any  reason  which  to  him  seems  sufficient  or  may  re- 
fuse when  no  reason  at  all  can  be  assigned  for  so  doing ;  while  appel- 
lant argues  that  in  a  case  such  as  that  now  before  us,  where  the  pro- 
posed individual  relator  has  a  personal  and  private  interest  in  the  liti- 
gation which  he  desires  to  set  on  foot  and  where  the  interest  of  the 
public  is  purely  or  largely  theoretical,  the  only  discretion  vested  in 
the  legal  representative  of  the  people  is  a  discretion  to  determine 
whether  the  documents  presented  to  him  by  the  individual  are  in  proper 
legal  form,  and  whether  the  part}^  seeking  the  institution  of  the  suit 
presents  evidence  of  such  facts  as  establish  his  legal  right  to  the  rem- 
edy to  be  afforded  by  judgment  against  the  respondent  in  the  quo 
warranto  proceeding. 

Originally  a  proceeding  of  this  character  was  by  writ  of  quo  war- 
ranto against  any  one  who  claimed  or  usurped  any  office,  franchise, 
or  liberty  to  inquire  by  what  authority  he  supported  his  claim,  in  or- 
der to  detennine  the  right.  Later  the  practice  was  changed,  and  an 
information  in  the  nature  of  a  writ  of  quo  warranto  succeeded  the 
former  method.  3  Blackstone's  Com.  262,  263.  By  the  common  law 
the  proceeding  in  quo  warranto  was  employed  exclusively  as  a  pre- 
rogative remedy,  to  punish  a  usurpation  of  franchises  or  liberties 
granted  by  the  crown,  and  never  as  a  remedy  for  private  citizens  de- 
siring to  test  the  title  of  persons  claiming  to  exercise  a  public  fran- 
chise or  desiring  to  establish  a  private  right.  In  England  the  infor- 
mation, as  a  means  of  investigating  and  determining  civil  rights  be- 
tween parties,  owes  its  origin  to  St.  9  Anne,  c.  20,  which  authorized 


■  Ouly  a  portion  of  the  opinion  of  .Scott,  J.,  is  printed. 


ol2  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    3 

and  required  the  proper  officer  to  file  the  information  by  leave  of 
court,  upon  the  relation  of  any  person  desirous  of  prosecuting  the 
same,  against  any  person  usurping  or  intruding  into  any  municipal 
office  or  franchise  in  the  kingdom.  High  on  Extraordinary  Legal 
Remedies  (3d  Ed.)  §  602.  That  statute,  how^ever,  having  been  passed 
in  the  year  of  our  Lord  ITIO,  has  never  been  in  force  in  this  state. 

It  will  be  observed  from  examination  of  section  1,  supra,  that  the 
proceeding  is  made  the  vehicle  for  the  assertion  of  many  rights,  both 
private  and  public,  which  could  not  have  been  vindicated  by  this  meth- 
od at  the  common  law.  As  originally  used,  the  proceeding  was  crim- 
inal in  character,  and  the  offender,  upon  conviction,  was  liable  both 
to  fine  and  imprisonment  as  well  as  ouster  from  the  franchise  or  lib- 
erty which  he  had  wrongfully  usurped.  Under  our  statute  the  pro- 
ceeding is,  in  fact,  a  civil  remedy  when  used  for  the  protection  of 
private  rights,  and,  in  the  event  of  a  judgment  in  favor  of  the  de- 
fendant costs  may  be  awarded  against  the  relator.  Chapter  112,  § 
G,  supra. 

By  the  common  law,  and  in  England  prior  to  the  passage  of  the 
statute  of  Anne,  arbitrary  discretion  was  lodged  in  the  Attorney  Gen- 
eral to  determine  whether  he  would  move,  and  that  discretion  could 
not  be  controlled  or  reviewed.  Attorney  General  v.  Ironmongers'  Co., 
2  Beav.  314;  Attorney  General  v.  Wright,  3  Beav.  447;  People  v. 
Attorney  General,  22  Barb.  (N.  Y.)  114;  People  v.  Fairchild,  8  Hun 
(N.  Y.)  334 ;  In  re  Gardner,  68  N.  Y.  467 ;  Everding  v.  McGinn,  23 
Or.  15,  35  Pac.  178.  In  extending  the  scope  of  this  proceeding,  the 
Legislature  of  this  state  has  not  by  express  words  changed  or  altered 
the  common  law  so  far  as  the  discretion  vested  in  the  Attorney  Gen- 
eral or  state's  attorney  is  concerned,  but  the  character  of  the  discre- 
tion possessed  by  these  officers  must  be  determined,  to  some  extent, 
by  consideration  of  the  rights  which  the  lawmaking  power  has  com- 
mitted to  that  discretion. 

By  the  common  law  the  information  in  the  nature  of  a  quo  war- 
ranto was  solely  a  prerogative  remedy.  No  suit  was  ever  prosecuted 
by  that  remedy  at  the  instance  of  a  private  person  or  for  the  asser- 
tion of  a  private  right.  It  was  used  only  where  a  wrong  had  been 
done,  or  was  alleged  to  have  been  done,  to  the  king,  and  it  was  there- 
fore the  rule  that  only  the  king,  or  his  representative,  should  deter- 
mine whether  a  suit  should  be  brought  to  enforce  the  right  of  the 
king.  Where  jurisdiction  is  given  the  courts  to  enforce  the  rights  of 
private  individuals  by  this  method,  it  is  manifest  that  the  power  to 
determine  whether  the  suit  should  be  brought  should  not  be  lodged 
in  the  legal  representative  of  the  sovereign  power,  when,  as  here,  the 
right  of  the  citizen  is  substantial  and  the  concern  of  the  state  with  re- 
gard to  the  litigation  is  practically  or  entirely  theoretical.  In  such 
case,  the  reason  for  the  rule  having  failed,  the  rule  itself  should  fail. 
This  is  well  illustrated  by  cases  of  one  class  which  are  constantly  aris- 
ing in  this  state.     These  are  cases  where  it  is  charged  by  the  owner 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  513 

of  realty  that  his  property  has  been  wrongfully  included  within  a 
drainage  district,  and  he  has  attempted  to  have  that  question  deter- 
mined upon  an  application  made  for  a  judgment  and  order  of  sale 
against  his  property  for  the  collection  of  a  tax  or  assessment  imposed 
by  the  drainage  authorities.  In  such  instances  this  court  has  invaria- 
bly held  that  he  could  not  raise  the  question  in  that  way,  but  that  he 
must  resort  to  an  information  in  the  nature  of  a  quo  warranto  for  the 
purpose  of  determining  whether  or  not  the  corporation  is  engaged  in 
exercising  powers  not  conferred  by  law.  Shanley  v.  People,  225  111. 
579,  80  N.  E.  277,  and  cases  there  cited. 

It  is  manifest  that  it  would  be  a  mere  travesty  to  say,  as  was  said 
in  the  Shanley  Case,  that  in  such  case  the  action  of  the  corporate  au- 
thorities "can  only  be  reviewed  in  a  direct  proceeding  by  quo  war- 
ranto," and  then  to  say  that  whether  or  not  application  shall  be  made 
I     for  leave  to  file  an  information  in  the  nature  of  quo  warranto  for  the 
I    purpose  of  reviewing  the  action  of  the  commissioners  rests  solely  in 
the  arbitrary  discretion  of  the  legal  representative  of  the  people,  who 
I    has  no  interest  in  the  welfare  of  the  proposed  relator,  and  who  may 
give  weight  to  the  fact  that  it  is  for  the  iDcnefit  of  a  large  number  of 
I    property  owners  who  are  properly  within  the  district  that  he  should 
i    refuse  to  permit  the  use  of  his  name,  and  who  may  regard  that  as 
1    a  sufficient  reason  for  declining  to  act.     It  is  against  the  policy  of  our 
1    law  that  the  arbitrary  power  to  determine  whether  the  individual  shall 
I    have  the  privilege  to  be  heard  in  the  courts  in  the  assertion  of  his 
I    private  right  should  be  lodged  in  any  tribunal  or  officer  not  a  court  or 
I    judicial  officer  as  distinguished  from  a  nonjudicial  or  quasi  judicial 
\   officer. 

I       Appellee  urges  that  it  cannot  consistently  be  held  that  the  state's 
|;  attorney  has  an  arbitrary  discretion  as  to  whether  he  will  seek  leave 
i   to  file  the  information  where  no  interest  is  involved  save  that  of  the 
public,  and  that  he  has  no  discretion  where  the  interest  of  a  private 
individual  is  concerned,  for  the  reason  that  such  discretion  as  he  has 
is  conferred  upon  him  by  the  following  words  from  the  statute :   "The 
Attorney  General  or  state's  attorney  of  the  proper  county,  either  of  his 
own  accord  or  at  the  instance  of  any  individual  relator,  may  present  a 
1  petition   to   any   court  of   record  of   competent   jurisdiction" — which 
words  apply  alike  to  cases  in  the  prosecution  of  which  the  people  of 
the  state  alone  are  interested  and  to  cases  in  which  no  substantial  right 
is  to  be  asserted  except  the  right  of  the  relator,  and  in  which  the  in- 
terest of  the  public  is  purely  or  entirely  theoretical. 

It  is  urged  that  any  such  construction  would'  result  in  holding  that 
the  word  "may,"  in  the  language  last  quoted,  means  "may"  in  cases 
I  where  only  the  public  interest  is  at  stake,  and  means  "shall"  where 
'  private  interests  are  involved ;  and  it  is  said  to  be  an  anomaly  to  hold 
'  that  the  same  word  in  the  same  sentence  of  a  statute  may  mean  one 
1  thing  when  applied  to  one  class  of  cases  and  another  thing  when  ap- 
I  FK.ADsr.LAW— 33 


514  RELIEF  AGAINST   ADMIXISTUATIVE   ACTION.  (Part   2 

plied  to  another  class  of  cases.  We  do  not  think  this  situation  pre- 
sents any  serious  difficulty.  When  the  Legislature  extended  the  right 
to  private  individuals  to  assert  private  rights  by  this  proceeding,  it  is 
apparent  that  it  was  intended  that  they  should  have  an  opportunity  to 
seek  redress  for  their  wrongs  by  making  application  to  a  court,  or  judge 
thereof,  for  leave  to  file  an  information.  The  duty  resting  upon  the 
state's  attorney  to  sign  and  present  a  petition  for  leave  to  file  an  in- 
formation in  the  nature  of  a  quo  warranto  where  evidence  of  facts  is 
properly  presented  to  him  by  a  proposed  relator  which  shows  prima 
facie  that  the  relator  is  legally  entitled  to  the  relief,  in  reference  to  a 
private  right,  which  would  be  afiforded  him  by  a  judgment  in  his  fa- 
vor in  a  quo  warranto  proceeding,  is  an  absolute  one. 

.It  follows,  therefore,  that  where  he  declines  to  act  for  any  reason 
other  than  that  the  facts,  evidence  of  the  existence  of  which  is  pre- 
sented to  him,  do  not  warrant  the  relief  which  the  proposed  relator 
seeks,  or  that  the  petition  and  affidavit  or  affidavits  presented  to  him 
are  not  in  proper  legal  form,  his  declination  is  an  abuse  of  his  discre- 
tion, conceding  that  his  construction  of  the  statute  be  correct,  and  such 
an  abuse  of  discretion  as  amounts  to  a  refusal  on  his  part  to  exercise 
his  discretion  at  all  and  to  a  refusal  to  perform  the  duty  enjoined  upon 
him  by  the  law.     *     ■■'•     * 

Courts  of  last  resort  in  our  sister  states  have  frequently  found 
themselves  confronted  with  the  same  difficulty  which  we  are  now  con- 
sidering, where  Legislatures  have  extended  the  scope  of  the  remedy 
by  quo  warranto  to  include  the  enforcement  of  private  rights,  but  have 
failed  to  impose  by  express  words  a  positive  duty  upon  the  Attorney 
General  or  state's  attorney  to  proceed  at  the  instance  of  the  individ- 
ual relator,  or  have  failed  to  provide  that  the  proceeding  may  be  in- 
stituted without  the  co-operation  of  those  officers.  It  has  sometimes 
been  held  that  the  arbitrary  discretion  of  the  public  prosecutor  still 
exists  as  at  common  law,  and  that  if  he  refuses  to  lend  his  name  to 
the  proceeding  the  individual  relator  is  without  remedy,  even  though 
the  refusal  of  the  officer  results  from  political,  selfish,  or  other  im- 
proper considerations.  In  other  states  relief  for  the  relator  has  been 
suggested  by  various  methods,  not  substantially  different,  so  far  as  the 
result  to  be  obtained  is  concerned.  [The  opinion  then  cites  and  quotes 
from  Bank  of  Mt.  Pleasant,  5  Ohio,  350  (1831),  State  v.  Berry,  3 
Minn.  [Gil.]  190  (1859),  State  v.  Deliesseline,  1  McCord  (S.  C.) 
52  (1821),  Lamoreaux  v.  Attorney  General,  89  Mich.  146,  50  N.  W. 
812  (1891),  and  Cain  v.  Brown,  111  Mich.  657,  TO  N.  W.  337  (1896).] 

In  People  v.  Ridgley,  21  111.  66,  and  in  People  v.  Waite,  70  111.  26, 
it  was  said  that  our  quo  warranto  statute  was  a  substantial  copy  of 
the  statute  of  Anne.  The  question  now  before  us  was  not  considered 
by  the  court  in  those  cases,  and  they  are  therefore  not  in  point.  The 
English  statute  just  referred  to  provides  that  "it  shall  and  may  be 
lawful  to  and  for"  the  proper  officer,  by  leave  of  court,  to  file  or  "ex- 
hibit'' the  information  (12  Pickering's  Stat,  at  Large,  190),  while  our 


Ch.  S)  ACTIONS   FOR   SrECIFIC   RELIEF.  515 

Statute  provides  that  the  Attorney  General  or  state's  attorney  "may 
present  a  petition"  to  the  court,  or  the  judge  thereof,  for  leave  to  file 
the  information.  The  statute  of  Anne  does  not  expressly  require  the 
officer  of  the  crown  to  file  the  application  for  leave,  and  yet  Rex  v. 
Trelawney,  3  Bur.  1G16,  and  Rex  v.  Wardroper,  4  Bur.  1964,  hold  that 
under  that  statute  the  officer  is  without  discretion  in  the  matter,  but 
must  apply  at  the  instance  of  the  private  relator,  and  that  the  only  dis- 
cretion is  in  the  court;  and  in  State  v.  Elliott,  13  Utah,  200,  41  Pac. 
248,  it  was  said  that  "except  when  changed  by  statute  the  rule  of  pro- 
cedure is  practically  the  same  in  this  country  as  in  England"  under  the 
statute  of  Anne.     *     *     '■' 

It  is,  of  course,  true  that  in  many  cases  where  the  individual  re- 
lator has  a  private  and  personal  interest  in  the  suit  which  he  seeks  to 
set  on  foot  the  public  also  has  a  substantial  interest  therein.     No  in- 
jury can  result  to  the  public  in  such  instances,  however,  by  requiring 
the  prosecutor  to  proceed,  for  the  reason  that  the  court,  or  the  judge 
thereof,  when  the  petition  for  leave  to  file  the  information  is  pre- 
sented, is  vested  with  a  sound  legal  discretion  to  be  exercised  in  de- 
termining whether  leave  to  file  the  information  should  be  granted,  and 
the  court  or  the  judge  thereof  may,  in  the  exercise  of  that  discretion, 
fully  protect  the  rights  of  the  public,  and  may  under  some  circumstan- 
ces, where  the  public  weal  demands,  refuse  leave  to  file  the  informa- 
tion although  the  clear  legal  right  of  the  relator  is  established.     Mc- 
;  Phail  v.  People,  160  111.  77,  43  N.  E.  383,  53  Am.  St.  Rep.  306.    The 
i  rights  and  interests  of  the  public  being  thus  fully  protected  by  a  sound 
;  legal  discretion  lodged  in  the  court,  or  the  judge  thereof  in  vacation, 
,  it  is  manifest  that  there  is  no  occasion  for  the  exercise  by  the  state's 
'attorney  or  Attorney  General  of  a  discretion  to  be  used  for  the  same 
I  purpose  and  for  no  other  purpose. 

;  The  discretion  possessed  by  the  Attorney  General  at  the  common 
]law  is  no  doubt  now  possessed  by  the  Attorney  General  or  state's  at- 
torney in  all  cases  which  are,  in  fact,  prosecutions  on  the  part  of  the 
people  and  which  involve  no  individual  grievance  of  the  relator.  One 
such  case  is  where  the  wrong  is  the  usurpation  of  an  appointive  public 
office  to  which,  in  the  event  of  judgment  of  ouster,  no  particular  in- 
dividual will  have  a  right  to  succeed ;  and  another  example  is  where 
ithe  object  is  to  secure  a  judgment  ousting  a  corporation  from  the  en- 
jjoyment  of  all  the  franchises  which  it  exercises.  In  cases,  however, 
Hvhere  the  proposed  relator  has  an  individual  and  personal  right,  dis- 
Icinct  from  the  right,  if  any,  of  the  public,  which  is  enforceable  by  a 
proceeding  in  quo  warranto,  and  where  he  presents  to  the  state's  at- 
lorney  a  proper  petition  for  his  signature  with  evidence  of  the  facts 
jiecessary  to  establish  the  right,  it  is  the  duty  of  that  officer  to  apply 
'or  leave  to  file  an  information  in  the  nature  of  a  quo  warranto,  and, 
if  he  refuses  when  the  matter  is  properly  presented  to  him,  ha  may 
j»e  compelled  by  mandamus  to  sign  and  file  the  petition  for  leave. 
}   The  practice  which  may  be  followed  by  one  who  desires  to  become 


516  RELIEF   AGAINST  ADMINISTRATIVE   ACTION,  (Part   2   i 

relator  is  to  present  to  the  state's  attorney  a  petition  addressed  to  the 
court,  or  to  the  judge  thereof  in  vacation,  for  leave  to  file  an  in  forma-  ! 
tion  in  the  nature  of  a  quo  warranto,  which  petition  should  be  so  drawn  I 
as  to  be  ready  for  filing-  when  the  signature  of  the  state's  attorney  is 
thereto  attached.    As  was  suggested  in  Cain  v.  Brown,  supra,  the  affi- 
davit or  affidavits  accompanying  the  petition  must  be  full  and  positive 
and  must  be  made  by  a  person  or  persons  knowing  the  facts,  and  be  . 
drawn  in  such  manner  as  that  perjury  may  be  assigned  thereon  if  any  | 
material  allegation  contained  therein  is  false.     The  affidavit  or  affida-  \ 
vits  accompanying  the  petition,   after  being  inspected  by  the  state's  ^ 
attorney,  should,  in  case  he  sign  the  petition,  be  presented  with  it  for 
consideration  by  the  court,  or  judge  thereof,  in  determining  whether 
to  grant  the  leave  asked.     The  practice  pursued  by  the  state's  attor- 
ney in  this  case  is  not  a  proper  one.    Upon  the  petition  being  presented 
to  him,  he  caused  the  actual  parties  to  the  controversy,  by  their  at-  ' 
torneys,  to  appear  before  him,  and  heard  them  on  the  proposition  as  , 
to  whether  he  should  sign  and  file  the  petition.     This  practice  has,  we 
understand,  been  long  pursued  in  certain  counties  of  this  state,  and 
we  have  no  doubt  that  the  public  prosecutor  of  Cook,  in  this  particular  ; 
instance,  proceeded  as  he  did  believing  in  good  faith  that  this  prac- 
tice was  the  correct  one.     In  our  judgment  the  law  of  this  state  does 
not  authorize  him  in  any  case  to  conduct  a  hearing  of  this  character, 
and  he  should  not  have  considered  the  views  of  the  respondent  named 
in  the  petition  or  those  of  his  attorneys.     *     *     =i=  os 

ns  See  People  ex  rel.  Post  v.  Healy,  2.31  111.  G29.  S3  N.  E.  4.>3  (1908):  "Two  , 
questions  are  involved  in  this  case,  both  of  which  must  be  decided  la  order 
to  determine  whether  the  superior  court  erred  in  sustaininji  the  demurrer 
and  dismissing  the  petition.  The  first  question  is  whether  the  appellee,  as 
state's  attorney,  is  possessed  of  an  arbitrary  and  uncontrolled  discretion  to 
file  or  refuse  to  file  a  petition  for  leave  to  file  an  information  in  the  nature 
of  a  quo  warranto  upon  the  application  of  an  individual  having  a  personal 
right  enforceable  by  that  proceeding;  and  the  second  is  whether  the  mayor 
of  the  city  of  Chicago  has  power  to  remove  from  office  members  of  the  board 
of  education.  If  a  state's  attorney  has  such  discretion,  he  cannot  be  coerced 
by  the  writ  of  mandamus;  and  if  the  .mayor  has  such  power,  the  writ  in 
this  case  would  not  be  awarded,  for  the  reason  that  the  object  sought  would 
be  unattainable  and  the  w^rit  useless.  The  first  question  was  answered  in 
the  case  of  People  ex  rel.  v.  Healy,  230  111.  280,  82  N.  E.  599,  15  L.  R.  A. 
(N.  S.)  608.  In  the  consideration  and  decision  of  that  case  we  had  the 
valuable  aid  of  the  exhaustive  briefs  and  arguments  of  the  counsel  in  this 
case,  both  printed  and  oral.  We  gave  full  consideration,  at  that  time,  to 
every  authority  and  argument  presented  in  this  case,  and  we  cannot  add 
anything  to  that  decision  by  a  restatement  here  of  the  reasons  on  which  it 
was  based.  It  w^as  there  lield  that  in  all  cases  which  are,  in  fact,  prosecu- 
tions on  the  part  of  the  people,  involving  no  personal  or  individual  right, 
the  state's  attorney  is  vested  with  the  same  discretion  originally  exercised 
by  him  at  the  common  law,  when  an  information  in  the  nature  of  a  quo 
warranto  was  solely  a  prerogative  remedy  of  the  crown;  but  under  our  stat- 
ute, which  has  enlarged  the  scope  of  the  remedy  for  the  protection  of  indi- 
vidual rights,  if  an  individual  having  a  private  and  personal  grievance  for 
which  the  proceeding  is  the  only  remedy  shall  present  a  proper  petition  to 
the  state's  attorney,  with  evidence  of  the  facts  necessary  to  establish  his 
right,  it  is  the  duty  of  such  state's  attorney  to  apply  for  leave  to  file  an 
information,  and  if  he  refuses  he  may  be  compelled  by  mandamus  to  perform 
that  duty." 


Ch.  8)  ACTIONS   FOR  SPECIFIC   RELIEF.  517 

SECTION  65.— APPEAI.«« 


BOARD  OF  SUPERVISORS  OF  BUREAU  COUNTY  v. 

CHICAGO,  B.  &  Q.  R.  Co. 

(Supreme  Court  of  Illinois,   18G7.     44  111.  229.) 

Mr.  Justice  Breese  delivered  the  opinion  of  the  court. ^     *     *     * 

i  The  appellees,  in  the  attempted  performance  of  the  duty  enjoined 

[  on  them  by  these  statutes,  presented  their  list  or  schedule  of  their 

I  taxable  property  for  1863,  owned  by  them  in  Bureau  county,  to  the 

I  clerk   of   the  county   court,   in   all    respects,   as   alleged   by   them,   in 

j  strict  compliance  with  the   statute,  which  the  clerk  laid  before   the 

I  board  of  supervisors  when  they  met  to  equalize  the  assessments  in 

I  that    county.     This    schedule    presented    an    aggregate    valuation    of 

!  $282,383.2 T    of  their  property   owned    in    Bureau   county,   wdiich    by 

I  the  action  of  the  board  was  increased  to  $395,336.57,  being  40  per 

I  cent,  above  the  valuation  by  the  company. 
i 

j  99  There  is  no  right  to  appeal  from  administrative  orders  to  a  court,  un- 

I  less  given  by  statute.     Brown  v.  District  Council  of  Narragansett,  21  R.  I. 

;  503,  42  Atl.  270.  44  Atl.  932  (1899).     See,  also,  Ohio  &  Miss.  R.  Co.  v.  Lawrence 

I  County,  27  111.  50  (18G1)  ;    Karb  v.  State.  54  Ohio  St.  383,  43  N.  E.  920  (1890). 

[  A  right  to  appeal  was  held  to   exist  by   implication  in   Sawyer  v.    State 

{  Board  of  Health,  125  Mass.  182  (1878).     See,  now,  Rev.  Laws  Mass.  c.  75,  § 

1  119.   and   Nelson   v.    State  Board   of   Health,    186   Mass.    330,    71   N.    E.    G93 

■(  (1904). 

I  An  official  power  of  supervision,  etc.  involves  a  right  to  entertain  appeals 

(Magwire  v.  Tyler,  1  Black.  195,  202,  17  L.  Ed.  137  [1861]).  unless  negatived 

'  bv  the  course  of  legislation.     See  Butterworth  v.   United   States,  112  U.    S. 

I  50,  5  Sup.  Ct.  25,  28  L.  Ed.  056   (1884).     But  as  a  rule  there  Is  no  right  to 

j  appeal  from  the  head  of  a  department  to  the  chief  executive.     Memorial  of 

Captain  Meigs,  9  Ops.  Attys.  Gen.  462  (1860);   Bollman's  Case,  10  Ops.  Attys. 

Gen.  526  (1863)  ;    Las  Animas  Grant,  15  Ops.  Attys.  Gen.  94.  100  (1876). 

I  For  a  very  comprehensive  provision,  giving  a  right  of  appeal,  see  Comp. 

I  St.  Neb.  1909,  §  7153  (Code  Civ.  Proc.  §  580):    "A  judgment  rendered,  or  tinal 

order  made  by  a  probate  court,  justice  of  the  peace,  or  any  other  tribunal. 

I  board   or   officer,    exercising  judicial  functions,    and    inferior    in   jurisdiction 

[  to  the  district  court,  may   be  reversed,  vacated,  or  modified  by  the  district 

ji  court." 

1  So,  also,  there  is  a  general  right  of  appeal  from  decisions  of  the  boards  of 

I  county   commissioners   to  the  circuit  courts   in   Indiana.      See    State  ex  rel. 

Reynolds  v.  Board  of  Com'rs  of  Tippecanoe  County,  45  Ind.  501  (1874). 

!  The  General  Administrative  Act  of  Prussia  (July  30,  1883)  provides  (sec- 

||  tion  127) :     Against  police  orders  of  local  police  authorities,  unless  expressly 

I  otherwise  provided  by  law,  there  shall  lie  a  remonstrance  to  [certain  speci- 

I  lied  superior  administrative  officers].     Against  the  decision  in  the  last  resort 

i  of  such  administrative  officers  there  shall  lie  an  action  in  the  supreme  ad- 

I  miuistrative  court.     The  action  can  be  founded  only  on  the  allegation:     (1) 

i  That  the  contested  decision  violates  the  rights  of  the  plaintiff  by  not  apply- 

)  ing  or  by  misapplying  the  existing  law  or  administrative  regulations  issued 

i  by  the  competent   authorities ;    or    (2)   that  the  facts  did  not  exist  which 

!  would  have  justified  the  issuing  of  the  order. 

\  1  A  portion  of  the  opinion  only  is  printed. 


518  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part   2 

Availing  of  the  act  of  1861,  by  which  an  appeal  is  allowed  to  the 
circuit  court  from  the  action  of  the  board  of  supervisors,  the  com- 
pany took  an  appeal  to  the  circuit  court  of  Bureau  county,  and,  by 
change  of  venue,  the  cause  was  transferred  to  La  Salle  county,  in 
the  circuit  court  of  which  county,  at  the  March  term,  1860,  such  pro- 
ceedings were  had  as  resulted  in  a  deduction  by  that  court  of  the 
per  cent,  thus  imposed  by  the  board  of  supervisors,  leaving  the  sched- 
ule of  the  company  as  originally  presented  to  the  county  clerk  intact. 

To  reverse  this  judgment,  the  county  of  Bureau  bring  the  case 
here  by  appeal,  and  assign  various  errors,  which  we  have  fully  con- 
sidered. 

The  first  question  they  make  is  that  the  circuit  court  had  no  juris- 
diction of  the  appeal,  that  it  was  a  case  not  provided  for  by  the  fun- 
damental law ;  and  we  are  referred  to  that  clause  of  the  Constitution 
conferring  judicial  power  in  support  of  the  position.  Section  1  of 
article  5  declares  that  the  judicial  power  of  the  state  shall  be  vested 
in  one  Supreme  Court,  in  circuit  courts,  in  county  courts  and  in  jus- 
tices of  the  peace;  provided,  that  inferior  local  courts  of  civil  and 
criminal  jurisdiction  may  be  established  by  the  General  Assembly  in 
the  cities  of  this  state,  but  such  courts  should  have  a  uniform  or- 
ganization and  jurisdiction  in  such  cities.  By  section  8  of  the  same 
article  it  is  provided  that  there  shall  be  two  or  more  terms  of  the 
circuit  court  held  annually  in  each  county  of  this  state,  at  such 
times  as  shall  be  provided  by  law;  and  said  courts  shall  have  juris- 
diction in  all  cases  at  law  and  equity,  and  in  all  cases  of  appeal  from 
all  inferior  courts." 

It  is  argued  with  great  force  and  ability  that,  inasmuch  as  the 
board  of  supervisors  is  in  no  sense  a  court  of  any  description,  an  ap- 
peal cannot  lie  to  the  circuit  court  from  any  of  its  determinations, 
and  consequently  the  act  of  1861,  allowing  an  appeal  by  a  railroad 
company  from  their  determinations,  is  unconstitutional  and  void. 
Much  ingenious,  forcible  and  persuasive  argument  has  been  used  by 
appellants  here  in  support  of  this  view,  but  we  are  not  convinced  by 
it.  Even  if  we  had  a  doubt  of  the  power  of  the  Legislature  to  make 
this  enactment,  we  should  be  constrained,  under  repeated  rulings 
of  this  court,  to  solve  the  doubt  in  favor  of  the  Legislature;  for  this 
court  has  declared  that  it  is  only  in  a  very  clear  case,  where  the  vio- 
lation of  the  Constitution  is  plain  and  palpable,  that  we  will  so  pro- 
nounce. Lucas  V.  Harris,  20  111.  165 ;  People  ex  rel.  v.  Auditor,  30 
111.  434;    City  of  Chicago  v.  Larned,  34  111.  203. 

In  considering  the  legislation  of  this  state  of  a  character  analogous 
to  this  act  of  1861,  we  are  by  no  means  convinced  of  the  want  of 
power  in  the  Legislature  to  allow  this  appeal.  It  may  be  the  board 
of  supervisors  of  a  county  is  not  a  court  in  the  legal  acceptation  of 
that  term,  but  it  has  power  conferred  upon  it,  by  the  wanton  and 

2  The  Constitution  of  1870  (article  6,  §  12)  says:  "Such  appellate  jurisdic- 
tion as  is  or  may  be  provided  oy  law." 


Cll.  8)  ACTIONS   FOR   SPECIFIC   RELIEF,  519 

unjust  exercise  of  which  the  most  vital  interests  of  parties  before  it 
may  be  rendered  totally  valueless.  Perilous  indeed  would  be  their 
condition,  if  those  great  interests  were  at  the  mercy  of  irresponsible 
men,  bent,  it  may  be,  on  inflicting  injury  for  which  they  could  not 
atone.  It  is  going  a  great  way  to  say  that  any  act  of  the  Legis- 
lature— a  co-ordinate  department  of  the  government,  and  whose 
speciality  is  the  enactment  of  laws — that  any  one  of  their  enactments 
has  no  foundation  in  the  Constitution,  an  instrument  which  the  law- 
makers are  sworn  to  support,  and  which  we  must  not  suppose  they 
liave  violated,  in  the  absence  of  the  clearest  proof.  Hence  courts 
have  always  approached  this  subject  with  great  delicacy,  and  have 
ever  manifested  a  disposition  to  sustain  the  law,  in  the  absence  of  an 
entire  conviction  of  its  unconstitutionality.  This  much  of  respect  is 
certainly  due  to  that  department  of  the  government,  and  this  court 
has  always  most  cheerfully  extended  it,  and  ever  will. 

To  insist  that  a  board  of  supervisors  is  not  a  court  does  not  de- 
cide the  question,  as  we  think.  In  our  legislation,  several  acts  may 
be  found  giving  an  appeal  to  the  circuit  court  in  cases  confessedly  not 
originating  in  the  exercise  of  judicial  power  by  a  court,  as,  for  ex- 
ample, in  the  case  of  the  trial  of  the  right  of  property  by  a  sheriff's 
jury.  The  case  of  Rowe  v.  Bowen,  28  III.  118,  was  such  a  case,  in 
which  we  held  that  an  appeal  lies  in  many  cases  not  growing  out  of 
judicial  proceedings,  as  upon  assessments  of  damages  by  commis- 
sioners for  roads,  or  for  city  improvements.  So,  also,  in  the  case 
of  the  establishment  of  a  road  by  commissioners,  as  was  held  in  the 
case  of  County  of  Peoria  v.  Harvey,  18  111.  364.  So,  where  the  stat- 
ute gives  an  appeal  from  an  assessment  of  damages  for  a  right  of 
way.  Joliet  &  Chicago  R.  R.  Co.  v.  Barrows,  24  111.  562.  The 
case  of  Ohio  &  Mississippi  R.  Co.  v.  County  of  Lawrence,  27  111.  50, 
occurring  before  1861,  very  distinctly  intimates  that  legislative  ac- 
tion was  necessary  to  uphold  the  appeal,  and  if  that  existed  the 
right  to  appeal  was  free  from  doubt.  The  act  of  1861  gives  an  ap- 
peal in  express  terms. 

In  view  of  this  legislation,  and  these  judicial  decisions,  it  is  too 
late  to  urge  a  want  of  jurisdiction  in  the  circuit  court  to  try  the 
appeal  from  the  board  of  supervisors,  and  we  must  hold  that  the  juris- 
diction was  complete  under  the  act  of  1861,  and  that  statute  is  not 
in  conflict  with  any  provision  of  the  Constitution,  considered  in  the 
light  of  long-continued  analogous  legislation  under  it.  In  counties 
not  adopting  township  organization,  individual  taxpayers  had  an  ap- 
peal from  the  county  assessor  to  the  county  court,  and  from  that  court, 
through  the  Auditor  of  Public  Accounts,  to  the  Supreme  Court. 
Scates'  Comp.  1040.  Railroad  companies  are  entitled  to  as  much 
favor  in  this  regard  as  individuals,  and  we  have  no  difficulty  in  de- 
ciding the  circuit  court  had  full  jurisdiction  of  the  appeal.     *     *     * 


520  KKLIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part   2 

CITY  OF  AURORA  v.  SCHOBERLEIN. 

(Supreme  Court  of  Illinois,  1907.    230  111.  496,  82  N.  E.  860.) 

Appeal  from  circuit  court,  Kane  county. 

Proceeding  by  the  City  of  Aurora  against  Adam  Schoberlein,  as 
Fire  Marshal.     From  the  judgment,  the   City  appeals.     Reversed. 

CartwrighT^  J.*  On  July  10,  1905,  written  charges  against  ap- 
pellee, fire  marshal  of  the  city  of  Aurora,  were  presented  to  the  board 
of  fire  and  police  commissioners  of  said  city  in  pursuance  of  section 
12  of  an  act  entitled  "An  act  to  provide  for  the  appointment  of  a 
board  of  fire  and  police  commissioners  in  all  cities  of  this  state  having 
a  population  of  not  less  than  seven  thousand  nor  more  than  one  hun- 
dred thousand,  and  prescribing  the  powers  and  duties  of  such  board," 
in  force  April  2,  1903.  Laws  1903,  p.  97.  After  an  investigation, 
at  which  appellee  was  heard  in  his  own  defense,  the  board  found 
him  guilty  as  charged  and  made  an  order  removing  him  from  office. 
Within  10  days  after  the  entry  of  the  order  appellee  filed  with  the 
secretary  of  the  board  a  bond  for  an  appeal  to  the  circuit  court  of 
Kane  county,  in  which  said  city  is  located,  and  on  November  21, 
1905,  the  secretary  transmitted  to  the  court  a  transcript  of  the  pro- 
ceedings before  the  board,  in  compliance  with  section  18  (page  100) 
of  said  act,  which  purports  to  allow  an  appeal  to  the  circuit  court  from 
any  order  of  a  board  created  under  th*e  act.  The  record  recites  that 
appellant  filed  its  motion  to  dismiss  the  appeal  on  the  ground  that 
section  18  is  unconstitutional  and  void,  and  the  court  denied  the  mo- 
tion. No  bill  of  exceptions  was  taken  at  the  time,  and  there  was  no 
extension  of  time  for  tendering  such  a  bill. 

The  appeal  was  subsequently  called  for  trial  before  another  judge, 
and  the  court  ordered  a  trial  de  novo,  against  the  objection  of  appel- 
lant, and  called  a  jury  against  like  objection.  The  files  of  the  pro- 
ceeding consisted  of  the  written  charges,  the  evidence  produced  be- 
fore the  board,  and  the  order  of  removal,  and  the  jury  were  sworn 
to  try  the  issues  joined  and  a  true  verdict  render  according  to  the 
evidence.  Both  parties  introduced  testimony  relating  to  the  charges, 
and  at  the  conclusion  of  the  evidence  the  court,  on  motion  of  ap- 
pellee, instructed  the  jury  to  find  him  not  guilty.  A  verdict  of  not 
guilty  was  thereupon  returned,  and  the  court  entered  an  order  re- 
versing the  order  of  the  board  removing  appellee  from  office,  and 
ordered  the  board  forthwith  to  reinstate  and  re-employ  him  as  fire 
marshal,  and  to  allow  him  to  perform  the  duties  and  services  con- 
nected with  that  office  and  collect  the  salary  and  compensation  al- 
lowed therefor,  and  also  rendered  judgment  against  appellant  for 
costs.  From  that  judgment  an  appeal  was  prosecuted  to  this  court, 
and  among  other  assignments  of  error  is  one  that  the  circuit  court  had 

8  Only  a  portion  of  the  opinion  of  Cartwriglit,  J.,  is  printed. 


Ch.  8)  ACTIONS   FOR   SrECIFIC   RELIEF,  521 

no  jurisdiction  of  the  subject-matter,  and  that  section  IS  of  said  act 
authorizing  an  appeal  is  unconstitutional  and  void.     '^     *     * 

The  board  of  fire  and  police  commissioners  of  the  city  of  Aurora 
is  a  branch  of  the  executive  department  of  the  city  government,  and 
all  the  acts  and  powers  of  the  board  are  purely  ministerial  or  execu- 
tive. The  Legislature  could  not  confer  upon  the  board  any  judicial 
power  whatever.  By  article  3  of  the  Constitution  the  powers  of  the 
government  are  divided  into  three  distinct  departments,  the  legisla- 
tive, executive,  and  judicial,  and  it  is  provided  that  no  person  or 
collection  of  persons,  being  one  of  these  departments,  shall  exercise 
any  power  properly  belonging  to  either  of  the  others,  except  as  there- 
inafter expressly  directed  or  permitted.  By  section  1  of  article  6  the 
judicial  powers  are  vested  in  certain  courts,  and  a  board  of  fire  and 
police  commissioners  cannot  assume  or  exercise  any  part  of  the  ju- 
dicial power.  George  v.  People,  167  111.  447,  47  N.  E.  741.  Nei- 
ther does  the  act  purport  to  give  to  such  boards  any  judicial  power. 
They  are  authorized  by  statute  to  remove  an  officer  for  cause,  after  a 
hearing  and  an  opportunity  to  make  a  defense,  and  that  authority 
implies  the  power  to  judge  of  the  existence  and  sufficiency  of  the 
cause;  but  there  is  no  such  thing  as  title  or  property  in  a  public  of- 
fice, and  the  removal  of  an  officer  is  not  the  exercise  of  judicial  pow- 
er. Donahue  v.  Will  County,  100  111.  94;  Stern  v.  People,  103  111. 
540.  No  right  of  life,  liberty,  or  property  was  involved  or  adjudi- 
cated before  the  board  in  this  case.  Although  the  exercise  of  the 
power  of  removal  involved  judgment  and  discretion,  it  was  not  a 
judicial  act.  It  has  been  said  that  where  an  act  is  the  result  of  judg- 
ment and  discretion  and  a  decision  upon  the  facts  it  is  of  a  judicial 
nature;  but  there  is  a  clear  distinction  between  such  acts  and  the 
exercise  of  judicial  power  which  adjudicates  upon  and  protects  the 
rights  and  interests  of  individuals  and  to  that  end  construes  and  ap- 
plies the  law. 

An  appeal  is  a  step  in  a  judicial  proceeding,  and  in  legal  contem- 
plation there  can  be  no  appeal  where  there  has  been  no  decision  by  a 
judicial  tribunal.  Two  things  are  essential  to  an  appeal,  in  its 
proper  sense:  First,  the  decision  of  a  judicial  tribunal;  and,  second, 
a  superior  court  invested  with  authority  to  review  the  decision  of 
the  inferior  tribunal.  Elliott  on  Appellate  Procedure,  §  15.  There 
have  been  cases  where  the  jurisdiction  of  courts  has  been  sustainefl 
in  what  were  called  appeals  from  inferior  bodies  having  nonjudicial 
powers,  such  as  the  case  of  establishing  a  road  by  commissioners 
involving  an  appraisement  of  damages  (County  of  Peoria  v.  Harvey, 
18  111.  364),  or  an  assessment  of  damages  for  a  right  of  way  (Joliet 
&  Chicago  Railroad  Co.  v.  Barrows,  34  111.  563),  or  the  trial  of  a 
right  to  property  levied  upon  and  claimed  by  a  third  party  before  a 
sheriff  and  jury  (Rowe  v.  Bowen,  38  111.  116),  or  an  assessment  of 
property    for   taxation    (Bureau    County    v.    Chicago,    Burlington    & 


522  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

Ouincy  Railroad  Co.,  44  111.  329).  The  nature  of  such  proceedings 
was  explained  in  the  case  of  Maxwell  v.  People,  189  111.  546,  59 
N.  E.  1101,  where  it  was  held  that  there  can  be  no  such  thing  as  an 
ajjpeal,  in  a  legal  sense,  from  a  nonjudicial  body  to  a  court.  It  was 
said  that  appellate  jurisdiction  is  the  attribute  of  a  court  created  for 
reviewing  the  decisions  of  inferior  courts  and  not  of  inferior  bodies 
nonjudicial  in  character,  citing  People  v.  Cook  Circuit  Court,  169  111. 
201,  48  N.  E.  T17,  and  it  was  held  that  this  court  takes  jurisdiction 
of  what  is  called  an  appeal  in  cases  relating  to  the  revenue,  in  the 
exercise  of  its  original  jurisdiction  conferred  by  the  Constitution. 
If  a  controversy  belongs  to  a  class  of  cases  of  which  a  court  has  orig- 
inal jurisdiction,  and  it  is  brought  before  the  court  in  the  method  pre- 
scribed by  the  Legislature,  the  court  may  take  jurisdiction  by  virtue  of 
its  general  powers;  but  so  far  as  the  remedy  is  judicial  it  begins  with 
a  presentation  of  the  case  to  the  court. 

The  cases  in  which  appeals  from  nonjudicial  bodies  to  courts  have 
been  recognized  have  involved  individual  or  property  rights  of  which 
the  court  had  jurisdiction  under  some  other  form  of  procedure,  and 
belonged  to  classes  of  cases  in  which  the  court,  acting  judicially, 
could  afford  a  remedy.  This  proceeding  is  not  of  that  character. 
The  section  in  question  purports  to  authorize  an  appeal  from  any 
order  of  the  board  by  any  person  interested  or  affected,  and  if  it 
should  be  sustained  it  would  result  in  the  circuit  courts  assuming 
and  exercising  executive  powers.  They  would  practically  control 
the  appointment  and  removal  of  members  of  fire  departments  in 
the  cities  of  this  state  to  which  the  act  applies,  by  the  exercise  of 
judgment  and  discretion  as  to  fitness  and  qualifications  of  individuals 
for  positions  in  such  departments,  and  not  by  adjudicating  rights 
or  applying  the  rules  of  law.  That  would  be  the  exercise  of  execu- 
tive powers,  which  the  separation  of  departments  of  the  govern- 
ment precludes  the  court  from  exercising. 

The  fact  that  courts  have  jurisdiction  to  issue  the  common-law 
writ  of  certiorari  to  determine  whether  inferior  bodies  have  acquired 
jurisdiction  to  act  and  have  proceeded  according  to  law  can  have 
no  influence  upon  the  question  here  involved.  The  courts  do  not,  by 
virtue  of  that  writ,  review  the  decisions  of  the  inferior  bodies  or  de- 
termine the  facts.  It  has  been  held  competent  for  the  Legislature  to 
confer  on  persons  holding  judicial  offices  the  power  to  appoint  of- 
ficers whose  selection  or  appointment  cannot  be  classed  as  belong- 
ing to  either  of  the  departments  of  government  (People  v.  Morgan, 
90  111.  558;  People  v.  Hoffman,  116  111.  587,  5  N.  E.  596,  8  N.  E. 
788,  56  Am.  Rep.  793)  ;  but  we  do  not  think  there  can  be  any  doubt 
that  officers  of  a  fire  department  belong  to  the  executive  branch  of 
the  government. 

Section  18,  which  purports  to  authorize  an  appeal  to  the  circuit 
court  from  any  order  of  a  board  of  fire  and  police  commissioners,  is 


Cll.  8)  ACTIONS   FOR  SPECIFIC   RELIEF.  523 

unconstitutional  and  void,  and  the  judgment  of  the  circuit  court  is 
reversed. 
Judgment  reversed.* 


THOMPSON  et  al.  v.  KOCH. 
(Court  of  Appeals  of  Kentucky,  1895.     98  Ky.  400,  33  S.  W.  96.) 

AppHcation  of  August  Koch  to  R.  H.  Thompson  and  others,  con- 
stituting a  Hcense  board,  for  a  Hquor  Hcense.  The  Hcense  was  re- 
fused, and  appHcant  appealed  to  the  circuit  court,  which  granted  the 
license,   from  whose  judgment  the  board  appeals.     Reversed. 

Pryor,  C.  J.  Under  the  provisions  of  the  statute  for  the  govern- 
ment of  cities  of  the  first  class  in  reference  to  the  retailing  of  spirit- 
uous liquors,  it  is  provided :  "The  judge  of  the  city  court,  the  chair- 
man of  the  board  of  public  safety,  and  the  president  of  the  com- 
missioners of  the  sinking  fund,  are  constituted  a  license  board,  the 
judge  of  the  city  court  to  be  the  chairman,  and  the  secretary  of  the 
sinking-  fund  shall  be  ex  officio  secretary."     St.  Ky.  §  3030. 

Section  3031  defines  the  manner  in  which  the  application  for  a 
license  shall  be  made,  and  the  qualifications  of  the  applicant.  Sec- 
tion 3033  provides  that  no  license  shall  be  granted  to  any  person  who 
has  not  the  qualifications  prescribed  in  section  3031,  and  further 
provides :  "No  license  shall  be  granted  to  retail  liquor  in  any  pre- 
cinct, if  in  the  opinion  of  the  board,  the  retailing  of  liquor  at  the 
place  named  will  be  injurious  to  the  people  thereof,  or  if  a  majority 
of  the  voters  of  the  precinct  registered  at  the  last  annual  registra- 
tion remonstrate  against  the  granting  of  the  same."  An  appeal  may 
be  had  to  the  circuit  court,  as  is  provided  in  the  following  section. 

The  section  following,  which  is  section  3034,  provides :  "Any  li- 
cense granted  by  said  board  may  be  revoked  by  it,  after  an  open  trial 
with  due  notice  to  the  licensee,  whenever  in  the  judgment  of  said 
board,  the  licensee  has  conducted  a  disorderly  house,  or  violated  the 
law  with  respect  to  the  sale  of  liquor,  and  either  party  who  shall  feel 
aggrieved  by  the  decision  of  the  board  may  have  an  appeal  to  the 
circuit  court." 

It  is  conceded  the  power  to  grant  the  license  is  with  this  license 
board,  and,  from  the  express  language  of  the  statute,  the  board,  in  its 

4  In  Sangamon  County  v.  Brown,  13  111.  207  (1S51),  it  was  held,  where  the 
statute  gave  an  appeal  from  the  decisiou  of  the  county  court  in  highway 
proceedings  to  the  circuit  court,  the  case  to  be  acted  upon  in  such  manner 
as  the  court  may  determine,  with  a  view  to  justice  and  tbe  establishment 
of  the  road,  that  tbe  only  question  to  be  reviewed,  if  the  county  court  ac- 
quired jurisdiction  and  proceeded  regularly,  Avas  the  amount  of  damages,  and 
that  the  question  whether  the  public  interests  demanded  the  construction  of 
the  road  was  a  matter  resting  in  the  sound  discretion  of  the  county  court, 
with  which  the  circuit  court  had  nothing  to  do. 

See,  also,  Board  of  Commissioners  of  Vigo  County  v.  Davis,  13G  Ind.  508, 
3G  N.  E.  141,  22  L.  R.  A.  515   (1894). 


524  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    3 

discretion,  may  refuse  the  license  when,  in  the  opinion  of  its  members, 
the  retailing  of  liquor  will  be  injurious  to  the  people  of  the  precinct  in 
which  the  liquor  is  proposed  to  be  sold,  or  when  a  majority  of  the 
registered  voters  in  the  precinct  at  the  last  annual  registration  re- 
monstrated against  the  granting  of  this  privilege  to  the  applicant. 
The  board,  constituted  as  the  statute  requires,  heard  the  testimony 
for  and  against  the  applicant  in  this  case,  and  refused  to  grant  the 
license.  An  appeal  was  taken  to  the  circuit  court,  and  there  the  case 
heard  de  novo,  and  a  judgment  entered  granting  the  license,  and  from 
that  judgment  an  appeal  has  been  taken  to  this  court. 

It  is  insisted,  by  counsel  for  the  applicant  that  no  appeal  lies  from 
the  judgment  below  to  this  court;  that  the  board  of  license  is  merely 
advisory,  is  at  best  a  tribunal  with  special  and  limited  power,  and 
cannot  in  any  sense  be  deemed  a  court,  because  the  present  constitu- 
tion expressly  prohibits  the  lawmaking  power  from  creating  any  other 
courts  than  those  mentioned  in  that  instrument.  We  perceive  no 
objection  to  that  character  of  legislation  requiring  or  granting  ap- 
peals from  the  judgments  of  boards  of  cities  and  towns,  whether 
of  the  one  class  or  the  other,  where  those  boards  are  vested  with  the 
power  of  hearing  and  determining  questions,  affecting  the  rights  of 
the  citizen,  that  pertain  to  the  particular  municipality  in  which  those 
rights  are  asserted  or  denied.  The  power  to  grant  licenses  must  be 
vested  in  somebody  connected  with  or  created  for  the  purposes  of 
municipal  government,  and,  besides,  this  appeal  comes  from  the  cir- 
cuit court,  and  its  judgments  are  subject  to  the  revisory  power  of  this 
court,  unless  prohibited  by  law.  An  appeal  lies  to  this  court  from  the 
judgments  of  circuit  courts  in  all  cases  other  than  those  excepted  by 
the  statute.  This  law  of  license  is  a  general  law,  applicable  to  all 
cities  of  the  first  class;  and,  the  circuit  court  entertaining  jurisdiction 
of  the  appeal,  the  right  of  appeal  to  this  court  is  unquestioned,  as  it  is 
not  within  any  of  the  exceptions  to  the  statute  in  which  this  court 
is  denied  appellate  jurisdiction. 

Counsel  for  the  appellant  insists  that  the  circuit  court  had  no  power 
to  reverse  the  judgment  of  the  board  rejecting  the  license,  because 
that  tribunal  was  invested  with  the  discretionary  power  of  granting  or 
refusing  such  applications,  and  to  take  this  discretion  from  the  board, 
and  place  it  with  the  judge  of  the  circuit  court,  was  never  contem- 
plated by  the  legislature.  While  it  is  not  necessary  to  determine  this 
question,  it  seems  to  us  clear  that,  when  such  discretion  is  confided 
to  certain  boards,  for  the  purposes  of  municipal  government,  and  an 
appeal  allowed,  it  should  appear  that  the  judgment  of  the  board  was 
the  exercise  of  an  arbitrary  discretion  before  the  circuit  court  would 
disregard  its  judgment,  and  therefore  the  circuit  court  should  have 
before  it  the  testimony  upon  which  the  board  acted;  for,  otherwise, 
this  discretion  would  be  taken  from  those  constituting  the  board, 
and  confided  alone  to  the  circuit  court.  If  the  case  is  to  be  heard  de 
novo,  then  the  applicant,  instead  of  seeking  the  judgment  of  the  board 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  525 

as  to  his  qualifications,  and  the  necessity  for  granting-  the  Hcense, 
could  decline  to  introduce  his  testimony,  and  submit  to  a  judgment 
against  him,  and,  by  an  appeal  to  another  tribunal,  deprive  the 
municipality  of  the  judgment  of  those  selected  by  law  to  pass  upon 
such  questions. 

When,  therefore,  this  discretion  is  confided  to  certain  boards,  the 
facts  upon  which  their  action  was  based  should  go  to  the  circuit  court, 
in  order  to  enable  that  court  to  determine  whether  or  not  the  judg- 
ment of  the  board  was  an  exercise  of  arbitrary  power.  If  this  mode  of 
practice  is  not  to  be  adopted,  and  we  think  this  discretionary  power 
cannot  exist  without  it,  then  it  appears,  from  the  testimony  heard  be- 
low, that  a  decision  might  well  have  been  rendered  for  either  party; 
and,  assuming  the  board  acted  alone  upon  the  testimony  heard  by  the 
circuit  judge,  still  there  was  nothing  to  show  that  any  arbitrary  action 
was  taken  by  the  board,  and  for  that  reason,  if  no  other,  the  judgment 
should  have  been  affirmed. 

The  judgment  of  the  circuit  court  is  therefore  reversed,  with  direc- 
tions to  dismiss  the  appeal  taken  from  the  license  board.° 

5  See  llopson's  Appeal,  65  Conn.  140,  31  Atl.  531  (1891):  "The  act  of  1893, 
in  permitting  an  aiipeal  from  the  decisions  of  couutj'  commi.s.sioners  to  the 
superior  court,  called  into  action  a  judicial  function  for  dealing  with  such 
appeal;  but  it  did  not  alter  the  actual  nature  or  extent  of  the  power  origi- 
nally vested  in  the  county  commissioners  for  the  selection  of  proper  persons 
and  proper  places  for  the  sale  of  liquors.  The  discretion  necessary  to  the 
exercise  of  that  power  by  the  county  commissioners  is,  by  the  appeal,  trans- 
ferred to  the  judge  of  the  superior  court;  but  there  is  nothing  in  the  act 
which  can  be  construed  as  attempting  to  vest  in  this  [the  Supreme]  court 
the  final  exercise  of  that  discretion,  or  the  control  of  its  exercise  by  a  judge 
of  the  superior  court.  In  dealing  with  such  appeal  the  superior  court  is 
bound  by  the  rules  of  law  regulating  the  conditions  on  which  the  discretion- 
ary power  of  selection  shall  be  exercised,  such  as  the  meaning  and  effect  of 
the  language  of  the  regulating  statutes,  and  the  acts  required  by  statutory 
regulations  in  order  to  permit  any  action  on  the  original  application  or  the 
appeal.  The  court  is  also  bound  by  those  fundamental  rules  of  law  that  con- 
trol all  exercise  of  judicial,  or  quasi  judicial,  power.  It  may  not.  for  in- 
stance, arbitrarily  refuse  to  hear  any  evidence,  or  to  listen  to  a  person  en- 
titled to  be  heard.  The  failure  of  the  court  to  comply  with  such  rules  may 
be  error,  which  this  court  upon  appeal  will  correct.  But  in  exercising  the 
duty  of  determining  a  suitable  person  and  a  suitable  place  for  the  sale  of 
liquors,  imposed  on  the  county  commissioners,  and,  by  force  of  the  appeal, 
transferred  unchanged  in  its  nature  and  extent  to  a  judge  of  the  superior 
court,  the  judge  is  engaged  in  settling  a  matter  of  discretion.  In  this  case, 
certainly,  the  court  was  not  engaged  in  the  trial  of  'matters  of  fact  in  any 
cause  or  action,'  within  the  meaning  of  the  statute  regulating  appeals  to 
this  court." 

In  Norwalk  Street  Railway  Company's  Appeal,  G9  Conn.  576,  596.  37  Atl. 
1080.  1087,  39  L.  K.  A.  794  (1897),  the  court  said:  "In  Hopson's  Appeal.  65 
Conn.  140,  31  Atl.  531  (1894),  we  held  that  the  selection  or  appointment  of 
such  a  licensee  was  a  means  apparently  appropriate  both  to  the  exercise  of 
executive  and  judicial  power ;  that  the  uniform  practice  of  courts  and  Legis- 
lature in  so  treating  such  appointment  might  be  safely  accepted  when  the 
distinction  to  be  drawn  must  be  subtle  and  doubtful." 

Further,  in  Norwalk  Street  Railway  Company's  Appeal.  69  Conn.  576,  37 
Atl.  1080,  39  U  R.  A.  794  (1897):  "The  act  of  1893  confers  upon  city  coun- 
cils certain  powers  in  establishing  regulations  for  the  location,  consti'uction, 
and  operation  of  street  railways,  and  requires  a  council,  if  requested  by  a 


526  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

STATE  ex  rel.  SERES  v.  DISTRICT  COURT  OF  FIRST  JU- 
DICIAL DISTRICT. 
(Supreme  Court  of  Montana,  1897.     19  INIont.  501,  48  Tac.  1104.) 

Application  of  the  State  of  Montana,  on  the  relation  of  J.  R.  Ser- 
res,  for  mandamus  against  the  District  Court  of  the  First  Judicial 
District  of  the  state  of  Montana  in  and  for  the  county  of  Lewis  and 
Clarke.    Writ  awarded. 

This  is  an  application  for  a  writ  of  mandamus.  The  petitioner 
alleges  that  he  is  a  regular  graduate  of  an  accredited  college  of  med- 
icine; that  he  attended  at  least  four  courses  of  lectures  at  said 
college,  of  six  months  each;  that  on  the  first  Tuesday  of  October, 
1896,  petitioner  was  an  applicant  to  the  board  of  medical  examiners 
for  a  certificate  entitling  him  to  practice  medicine  and  surgery  in 
the  state  of  Montana;  that  a  meeting  of  said  board  was  held  in 
Helena  on  the  day  aforesaid ;  that  at  said  meeting  the  petitioner  pre- 
sented his  diploma  from  said  medical  college,  evincing  his  gradua- 
tion; that  said  diploma  was  found  by  the  said  board  of  examiners 
to  be  genuine,  and  issued  by  a  regular  medical  college,  legally  or- 
ganized and  in  good  standing;  that  he  thereupon  submitted  to  an 
examination  in  the  various  branches  prescribed  by  law  and  the  said 
board  of  examiners,  and  filed  with  the  said  board  his  examination 
papers,  written  upon  the  questions  by  the  said  board  propounded  in 
the  said  various  branches ;  that  thereupon  said  board  denied  the  pe- 
titioners  application  for  a  certificate  to  practice  medicine  and  sur- 
gery in  the  state  of  Montana  upon  the  ground  that  said  examination 
papers  showed  that  the  petitioner  had  not  the  requisite  learning  to 
entitle  him  to  such  certificate ;  that,  after  being  notified  by  said  board 
of  its  determination  not  to  grant  this  petitioner  such  certificate,  he 
within  30  days  duly  appealed  from  the  decision  of  the  said  board 
of  medical  exaininers  to  the  district  court  of  the  First  judicial  dis- 
trict of  the  state  of  Montana  in  and  for  the  county  of  Lewis  and 
Clarke;    and  that,  after  said  appeal  was  duly  taken  to   the  district 

railway  company,  to  take  some  action  witliin  sixty  clays,  and  to  notify  tlie 
company  in  writing  of  its  action.  Whenever  a  council  fails  to  give  sucli 
written  notice,  tlie  act  of  1895  confers  the  same  powers  upon  the  'superior 
court  or  any  .iudge  thereof,'  to  be  exercised  on  application  of  a  railway  com- 
pany, and  calls  this  application  an  'appeal.'  *  *  *  The  so-called  'appeal' 
in  this  case  is  not  a  process  to  invoke  the  judicial  power.  It  is  simply  an 
application  to  the  superior  court  to  exercise  a  legislative  function.  *  *  * 
We  cannot  recognize  such  a  right,  because  the  recognition  leads  inevitably 
to  the  obliteration  of  any  line  of  separation  between  the  judicial  and  other 
departments  of  the  government." 

See  New  York  Railroad  Law,  §  94. 

See,  also,  Appeal  of  Spencer,  78  Conn.  301,  Gl  Atl.  1010  (1905);  Tyson  v. 
Washington  Co.,  78  Neb.  211,  110  N.  W.  Q?A,  12  L,  R.  A.   (N.  S.)   350   (1907). 

As  to  appeals  from  administrative  action  concerning  questions  of  right, 
see  United  States  v.  Duell,  172  U.  S.  57G,  19  Sup.  Ot.  28G,  43  L.  Ed.  559 
(1899). 


Ch.  8)  ACTIONS   FOR  SPECIFIC   RELIEF.  527 

court,  the  said  district  court,  on  the  motion  of  the  county  attorney  of 
the  said  county  and  the  Attorney  General  of  the  state,  dismissed  the 
petitioner's  appeal,  upon  the  ground  that  the  said  court  had  no  ju- 
risdiction to  try  and  determine  the   same. 

The  petitioner  asks  for  a  writ  of  mandate  in  this  proceeding-,  com- 
manding the  district  court  to  reinstate  his  appeal  and  to  proceed  to 
the  hearing  and  determination  thereof.  On  the  return  of  the  writ, 
the  Attorney  General,  for  the  said  district  court,  demurred  to  the 
petition  for  the  reasons — First,  that  said  petition  does  not  state  facts 
sufficient  to  entitle  said  petitioner  to  the  relief  prayed  for;  and,  sec- 
ond, that  said  petition  shows  affirmatively  that  the  action  of  the  med- 
ical board  in  refusing  to  issue  a  certificate  for  the  cause  specified 
was  final,  and  not  subject  to  review  by  any  appellate  tribunal,  and 
that  said  defendant  (district  court),  in  dismissing  said  petition,  act- 
ed correctly  and  within  its  jurisdiction,  in  that  no  appeal  lay  from  the 
action  of  the  board  to  said  defendant. 

Pemberton,  C.  J.  (after  stating  the  facts).  The  only  question 
presented  here  is  this :  Does  the  statute  allow  an  appeal  to  an  appli- 
cant who  has  been  refused  a  certificate  by  the  medical  board  au- 
thorizing him  to  practice  medicine  and  surgery  in  this  state  on  the 
ground  that  the  applicant's  examination  papers  show  that  he  has 
not  the  requisite  learning  to  entitle  him  to  such  certificate? 

Counsel  for  the  defendant,  the  Attorney  General,  contends  that 
the  right  of  appeal  exists  only  when  the  certificate  is  refused  or  re- 
voked by  the  board  for  unprofessional,  dishonorable,  or  immoral  con- 
duct, and  that  no  appeal  lies  from  the  refusal  of  the  board  to  issue 
a  certificate  on  the  ground  of  the  incompetency  of  the  applicant. 

That  part  of  section  603,  Pol.  Code,  which  provides  for  appeals 
from  the  action  of  the  medical  board  is  as  follows :  "In  all  cases 
of  the  refusal  or  revocation  of  a  certificate  to  practice  medicine  by 
the  said  board,  the  person  aggrieved  thereby  may  appeal  from  the 
decision  of  the  board  to  the  district  court  of  the  county  in  which 
such  revocation  or  refusal  was  made." 

Counsel  for  defendant  contends  that  this  provision  only  gives  the 
right  of  appeal  where  the  certificate  is  refused  or  revoked  by  the 
board  for  unprofessional,  dishonorable,  or  immoral  conduct,  and  that 
State  V.  District  Court  of  First  Judicial  District,  13  Mont.  370,  34: 
Pac.  298,  in  which  this  court  discussed  the  right  of  appeal  from  the 
action  of  the  medical  board,  does  not  go  to  the  extent  of  deciding 
that  an  appeal  lies  in  cases  like  the  one  at  bar. 

But,  in  examining  our  statute,  we  find  no  language  that  restricts 
the  right  of  appeal  to  any  particular  class  of  cases.  The  terms  of 
the  statute  are  general,  and  give  the  right  of  appeal  "in  all  cases  of 
the  refusal  or  revocation  of  a  certificate  to  practice  medicine  by  the 
said  board."  A  number  of  the  states  have  statutes  like  ours,  but 
we  are  not  referred  to  any  decision  of  any  of  the  states  where  the 
precise  question  here  involved  has  been  adjudicated  and  determined. 


528  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

The  law  provides  that  appeals  in  such  cases  shall  be  conducted  like 
appeals  from  a  decision  of  a  board  of  county  commissioners  dis- 
allowing a  claim.  Pol.  Code,  §  603.  Appeals  from  actions  of  boards 
of  county  commissioners  are  prosecuted  and  tried  like  appeals  from 
a  justice  of  the  peace.  Id.  §  4289.  Appeals  from  a  justice  court  are 
tried  de  novo. 

It  is  said  by  counsel  for  the  defendant  that  a  trial  of  this  case  de 
novo  in  the  district  court  would  be  impracticable,  if  not  impossible; 
that  the  court  or  jury  could  not  try  and  determine  the  question  of 
petitioner's  competency  to  practice  medicine.  It  is  further  insisted 
that  the  law  does  not  provide  any  procedure  by  which  the  district 
court  could  properly  try  and  determine  this  question. 

In  State  v.  District  Court  of  First  Judicial  District,  supra,  this 
court  held  that  the  right  of  appeal  was  not  rendered  nugatory  because 
the  law  did  not  prescribe  rules  to  guide  the  district  court  in  try- 
ing such  appeal.  This  was  when  there  were  no  proceedings  or  rules 
prescribed  by  law  for  appeals  in  such  cases.  The  present  statutes 
do  prescribe  the  manner  of  appeal,  and,  if  the  proceedings  prescribed 
by  the  statute  are  inefficient,  under  the  provision  of  section  205,  Code 
Civ.  Proc,  "any  suitable  process  or  mode  of  proceeding  may  be 
adopted  which  may  appear  most  conformable  to  the  spirit  of  the 
Code."  Awkward,  difficult,  and  unsatisfactory  a,s  a  trial  of  this  case 
in  the  district  court  might,  and  doubtless  would,  be,  we  are  of  the 
opinion  that  the  learned  district  judge  would  be  able  to  devise  ways 
and  means  not  incompatible  with  the  Code  for  disposing  of  the  case. 

Impolitic  and  unwise  as  this  law  may  be,  still,  if  the  Legislature  has 
given  the  petitioner  the  right  of  appeal  in  this  case,  we  have  neither 
the  right  nor  disposition  to  deprive  him  of  its  exercise  by  any  unau- 
thorized construction  of  the  statute  or  by  any  apparent  judicial  leg- 
islation. Unless  we  construe  or  legislate  something  very  material 
into  the  statute  not  placed  there  by  the  Legislature,  we  think  the  pe- 
titioner, under  the  law,  which  is  broad  and  general  in  its  terms,  is 
entitled  to  prosecute  his  appeal  in  this  case.  Whether  or  not  such 
laws  are  wise  or  unwise,  politic  or  impolitic,  are  questions  for  the 
legislative  branch  of  the  government,  and  we  have  no  right  or  in- 
clination to  invade  that  domain. 

The  order  of  the  district  court  dismissing  the  appeal  in  this  case 
is  reversed,  and  a  peremptory  writ  of  mandate  is  ordered  to  issue, 
directing  that  the  district  court  reinstate  said  appeal  and  proceed  to 
the  trial  of  the  cause. 

Reversed. 

Buck,  J.,  dissents.® 

<5  The  concurring  opinion  of  Hunt,  J.,  is  omitted. 

See  Laws  Mont.  1907,  c.  100,  providing  for  a  trial  of  appeals  by  a  jury 
of  six  physicians. 

Compare  Raaf  v.  State  Board  of  Medieial  Examiners,  11  Idaho,  707,  84 
Pac.  33  (1906)  ;    also  Munk  v.  Frink,  7.5  Neh.  172.  100  N.  W.  425  (190.5). 

As  to  whether  the  provision  by  statute  for  an  appeal  excludes  other  reme- 


Ch.  8)  ACTIONS   FOR   SPECIFIC   RELIEF.  529 


SECTION  GG.— DEFENSE  TO  ENFORCEMENT  PRO- 
CEEDINGS 


This  is  a  verj'  common  method  of  testing  the  legality  of  administrative 
action,  illustrated  by  numerous  cases  in  this  collection.  See  the  following : 
Oalbraith  v.  Llttiech,  73  111.  209  (1874)  ;  Nealy  v.  Brown,  6  111.  10  (1S44); 
State  V.  Weimer,  64  Iowa,  243,  20  N.  W.  171  (1884);  People  v.  Hopson,  1 
Denio  (N.  T.)  574  (1S4.5) ;  Hagar  v.  Reclamation  District,  111  U.  S.  701, 
4  Sup.  Ct.  6G3,  28  L.  Ed.  569  (1884);  Waye  v.  Thompson,  L.  R.  15  Q.  B. 
342  (1885);  Philadelphia  v.  Scott,  81  Pa.  80,  22  Am.  Rep.  738  (1876)  :  Met- 
ropolitan Board  of  Health  v.  Heister,  37  N.  Y.  661  (1868);  Health  Depart- 
ment V.  Trinity  Church.  145  N.  Y.  .32,  39  N.  E.  8.33,  27  L.  R.  A.  710,  45  Am. 
St.  Rep.  579  (1895);  Salem  v.  Eastern  Railroad  Cto.,  98  Mass.  431,  96  Am. 
Dec.  650  (1868)  ;  Com.  v.  Sissou,  189  Mass.  247,  75  N.  E.  619,  1  L.  R.  A. 
(N.  S.)  752,  109  Am.  St.  Rep.  630  (1905);  Com.  v.  Kinsley.  133  Mass.  578 
(1882)  ;  Martin  v.  State,  23  Neb.  371,  36  N.  W.  554  (1888);  King  v.  Venables, 
2  Ld.  Raym.  405  (1725)  ;  People  v.  McCoy.  125  111.  289.  17  N.  E.  786  (1888) ; 
State  V.  Lamos,  26  Me.  2.58  (1846)  ;  Hutton  v.  Camden.  39  N.  J.  Law.  122, 
23  Am.  Rep.  203  (1876);  State  v.  Kansa.s  Central  R.  Co..  47  Kan.  497,  28 
Pac.  208  (1891);  Interstate  Commerce  Commission  v.  Cincinnati,  etc.,  R. 
Co.,  167  U.  S.  479,  17  Sup.  Ct.  896,  42  L.  Ed.  243  (1897) ;  Wilson  v.  Eureka 
City,  173  U.  S.  .32,  19  Sup.  Ct.  317,  43  L.  Ed.  603  (1899);  McLean  v.  Jeph- 
son,  123  N.  Y.  142,  25  N.  E.  409,  9  L.  R.  A.  493  (1890) ;  Harrington  v.  Glid- 
den.  179  Mass.  486,  61  N.  E.  54,  94  Am.  St.  Rep.  613  (1901)  ;  Fire  Depart- 
ment V.  Gilmour,  149  N.  Y.  453,  44  N.  E.  177,  52  Am.  St.  Rep.  748  (1896)  ; 
Spencer  &  Gardner  v.  People,  68  111.  510  (1873);  Interstate  Commerce  Com- 
mission V.  Alabama  Midland  R.  Co.,  168  U.  S.  144,  18  Sup.  Ct.  45,  42  L.  Ed. 
414    (1897). 


dies,  and  especially  also  whether  it  prevents  defects  of  administrative  action 
i  to  be  availed  of  by  way  of  defense  to  proceedings  brought  on  behalf  of  the 
j  public  against  the  individual,  see  Governors  of  Bristol  Poor  v.  Wait,  1  Ad  <fe 
I     El.  264  (1834)  ;    Allen  v.  Sharp,  2  Exch.  352  (1848);    Clinkenbeard  v.  United 

States,  21  Wall.  65,  22  L.  Ed.  477  (1874). 

See,  for  application  of  statutory  right  of  appeal,  the  following  cases  In 
this  collection:  Gross'  License,  161  Pa.  344,  29  Atl.  25  (1894) ;  Whltely  v. 
Platte  Co.,  73  Mo.  30  (1880) ;  Fuller  v.  Colfax  Co.  (C.  O.)  14  Fed.  177  (ISS*?)  • 
Lillienf eld's  Case,  92  Va.  818,  23  S.  E.  882  (1896);  Gilbert  v.  Columbia 
Turnpike  Co.,  3  Johns.  Cas.   (N.  Y.)   107   (1799). 


Fb.Adm.Law — 34 


530  RELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part   2 


CHAPTER  IX 

JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL 
CONTROL 


SECTION   67.— IN  GENERAI. 


STATE  ex  rel.  COOK  v.  HOUSER. 
(Supreme  Court  of  Wiscousiu,  1904.     122  Wis.  534,  559,  100  N.  W.  964,  971.) 

Marshall,  J.^  *  '"^  *  Whatever  privileges  are  within  the  pow- 
er of  the  Legislature  to  grant  may  be  granted  upon  such  conditions 
and  subject  to  such  regulations  as  it  in  its  wisdom  may  see  fit  to 
impose.  That  is  elementary.  In  dealing  with  this  subject  care  should 
be  exercised  to  distinguish  between  common-law  rights,  which  are 
within  the  protection  of  constitutional  restraints  upon  legislative  au- 
thority, and  mere  legislative  creations.  A  failure  in  that  regard 
would  be  quite  likely  to  lead  one  astray.  The  right  to  vote  and  to 
secrecy  in  respect  to  the  elector's  opinion  thus  expressed  cannot  be 
impaired,  but  the  enjoyment  of  those  rights  which  are  within  consti- 
tutional protection  may  have  every  legislative  aid  which  the  wisdom 
of  the  lawmaking  power  may  see  fit  to  afford.  The  power  of  reg- 
ulation to  that  end  is  limited  only  by  what  is  reasonable.  Any  at- 
tempt to  regulate  passing  that  barrier  is  destructive  of  the  right  involv- 
ed, not  an  aid  to  its  enjoyment,  and  hence  is  not  legitimate.     *     *     '■' 

So  the  plan  for  an  official  ballot,  and  opportunity  for  party  repre- 
sentation thereon,  are  matter  of  legitimate  legislative  creation ;  hence 
the  conditions  of  party  representation  upon  such  ballot  are  purely 
within  legislative  control.  Whoever  joins  a  political  party  impliedly 
submits  to  regulations  in  that  regard,  as  in  effect  by-laws  of  the 
organization,  the  same  as  every  member  of  any  other  voluntary  as- 
sociation, upon  joining  the  same,  irrevocably  pledges  himself  to  be 
bound  by  the  decisions  of  its  tribunals,  save  as  regards  jurisdictional 
errors.  This  court  very  recently  dealt  with  such  relations  in  Bartlett 
V.  L.  Bartlett  &  Son  Co.,  116  Wis.  450,  93  N.  W.  473,  and  Wood  v. 
Chamber  of  Commerce,  119  Wis.  367,  96  N.  W.  835. 

Errors  of  judgment  committed  by  such  a  tribunal,  however  nu- 
merous or  serious,  even  though  by  reason  thereof  justice,  except  as 
regards  mere  form,  be  denied  and  wrong  from  an  original  stand- 
point be  made  to  bear  the  stamp  of  right,   does  not  militate  at  all 

1  Only  a  yortiou  of  the  opinion  of  Marsliall,  J.,  is  printed. 


Ch.  9)      JURISDICTION,  CON'CLL'SIVEXESS,  AND  JUDICIAL   CONTROL,         531 

against  the  binding  effect  of  the  result.  All  must  bow  to  it  as  the 
right  of  the  matter  from  a  legal  standpoint,  however  much  from  a 
moral  aspect  it  may  appear  to  be  wrong.  That  applies  to  all  tribu- 
nals of  voluntary  organizations  and  to  all  special  tribunals  created  by 
law  to  deal  with  legislative  rights  and  privileges.  There  are  so  many 
illustrations  of  approved  legislation  as  regards  the  latter  that  it  is 
strange  that  a  layman,  even,  should  marvel  at  the  existence  of  such 
laws,  and  passing  strange  that  others  should.  There  are  hundreds 
of  such  tribunals.  Every  board  of  review,  every  one  of  the  numerous 
official  boards  and  councils  empowered  to  act  judicially,  is  such  a 
one.  Who  would  expect  to  avoid  the  decision  of  a  board  of  review, 
or  the  board  of  law  examiners,  or  the  board  of  control,  or  the  board 
of  regents,  or  the  board  of  dental  examiners,  as  to  any  matter  with- 
in its  jurisdiction,  except  for  errors  of  a  jurisdictional  character? 
The  books  are  full  of  decisions  in  harmony  with  what  is  here  sug- 
gested. The  following  are  examples :  State  ex  rel.  Coffey  v.  Chit- 
tenden, 112  Wis.  569,  88  N.  W.  587;  State  ex  rel.  Vilas  v.  Wharton, 
117  Wis.  558,  91:  N.  W.  359;  State  ex  rel.  Augusta  v.  Losby,  115 
Wis.  57,  90  N.  W.  188 ;  State  ex  rel.  Heller  v.  Lawler,  103  Wis.  460, 
79  N.  W.  777;  State  ex  rel.  N.  C.  Foster  Lumber  Co.  v.  Williams, 
123  Wis.  61,  100  N.  W.  1048,  and  State  ex  rel.  Grav  v.  Common 
Council,  104  Wis.  622,  80  N.  W.  942.     *     *     * 


SECTION  68.— POLICE  POWER— JURISDICTIONAL  PRE- 
REQUISITES 


WARNE  V.  VARLEY  et  al. 

(Court  of  King's  Bench,  ITO.j.     G  Durn.  &  E.  443.) 

To  an  action  of  trespass  for  taking  the  plaintiff's  goods  (leather) 
and  detaining  them  eighteen  days,  the  defendants  pleaded  a  justi- 
i  fication  under  St.  2  Jac.  I,  c.  22,  in  which,  after  alleging  that  they 
i  were  duly  appointed  according  to  the  act  to  view  and  search  all  tan- 
'  ned  hides,  skins  or  leather  that  should  be  brought  to  Leadenhall 
i'  Market  and  sworn  to  execute  their  office  truly,  and  that  Varley  was 
i'  also  appointed  a  sealer  under  the  act,  they  stated  that  the  plaintiff, 
{  a  tanner,  on  the  25th  of  November,  1795,  offered  for  sale  in  Leaden- 
i  hall  ]\Iarket  the  goods  in  question,  which  "had  not  after  the  tanning 
t  thereof  been  well  and  thoroughly  dried  in  the  judgment  of  the  de- 
fendants according  to  the  true  intent  and  meaning  of  the  said  act 
I  of  Parliament,  wherefore  the  defendants  by  virtue  of  their  office 
\  seized  and  carried  away  the  said  goods,  and  detained  them  in  their 


532  RELIEF  AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

custody  until  they  might  be  duly  tried  in  manner  and  form  as  is 
directed  by  the  said  statute,  etc.,  and  that  within  a  reasonable  and 
convenient  time  after  the  said  seizure,  to  wat,  on  the  28th  of  November, 
the  defendants  gave  notice  of  the  seizure  to  the  Lord  Mayor  of 
London,  in  order  that  triers  might  be  appointed  for  trying  the  same 
according  to  the   directions  of  the   said  act,   etc. 

The  plaintiff  replied  that  the  said  skins,  after  the  tanning  thereof 
and  before  they  were  put  up  to  sale,  had  been  well  and  thoroughly 
dried  according  to  the  true  intent  and  meaning  of  the  said  act,  and 
that  after  the  seizure  they  were  duly  tried  by  six  persons  (naming 
them)  duly  appointed  by  the  Lord  Mayor  to  be  triers,  who  upon 
their  oaths  determined  that  the  leather  had  been  well  and  thoroughly 
dried  after  the  tanning  according  to  the  true  intent  and  meaning 
of  the  act,  and  that  the  leather  was   afterwards  restored  to  him. 

Lord  Kenyon,  C.  J.  I  should  have  been  glad  to  have  found  some 
ground  on  which  the  defendants'  justification  could  have  been  sup- 
ported, because  they  appear  to  have  acted  fairly  and  bona  fide ;  but 
after  comparing  the  pleadings  with  the  act  of  Parliament,  it  is  im- 
possible to  decide  in  their  favor.  This  act  was  made  early  in  the 
time  of  James  the  First,  when  the  trade  of  this  country  was  in  its 
infancy,  and  in  a  reign  during  which,  notwithstanding  what  wits 
have  said  concerning  the  pedantr)'-  of  the  monarch,  more  wholesome 
acts  of  Parliament  were  made  for  the  benefit  of  the  trade  of  the 
country  than  in  any  subsequent  period  of  the  same  duration.  But 
this  furnishes  one  of  many  examples  that  the  wisest  legislature  in 
making  a  law  do  not  forsee  every  possible  case  that  may  happen.  I 
have  no  doubt  but  that,  if  the  case  in  question  had  occurred  to  their 
minds  when  they  framed  this  law,  they  would  have  provided  for  it. 
But,  sitting  in  a  court  of  law,  we  are  bound  to  decide  on  the  act 
of  Parliament  as  we  find  it,  and  are  not  at  liberty  to  introduce  into 
it  any  regulations,  however  wise  and  proper  they  may  appear  to 
us.  This  statute,  after  directing  that  searchers  shall  be  appointed, 
authorizes  them  to  seize  leather  of  a  certain  description,  and  to  sub- 
mit it  to  the  future  inquiry  of  the  triers.  It  seems  reasonable  that, 
if  these  searchers  exercise  their  authority  bona  fide,  and  only  seize 
such  leather  for  the  examination  of  the  triers  as  in  their  judgment 
ought  to  be  examined,  they  should  be  protected;  in  such  a  case  they 
do  not  transgress  any  moral  duty,  and  I  should  have  been  glad  to 
find  that  they  had  not  transgressed  any  legal  duty.  But  the  act  of 
Parliament  affords  them  no  such  protection.  It  only  empowers  them 
to  seize  leather  which  is  not  dried,  etc.,  according  to  the  true  in- 
tent and  meaning  of  the  act.  Plere  the  plea  does  not  allege  that 
the  leather  was  insufficiently  dried ;  and  the  replication  does  state  ex- 
pressly that  it  was  sufficiently  dried,  etc.,  according  to  the  true  in- 
tent and  meaning  of  this  act.  Therefore  it  appears  on  the  record 
that  the  defendants  seized  leather  which  the  statute  did  not  au- 
thorize them  to  seize. 


Ch.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL  CONTROL,         533 

This  case  does  not  differ  in  principle  from  those  alluded  to  of 
custom-house  and  excise  officers.  In  those  cases  which  more  fre- 
quently occur,  the  legislature  have  gradually  introduced  new  laws 
as  the  occasion  called  for  them.  Custom-house  officers  were,  until 
a  late  act  of  Parliament  (19  Geo.  II,  c.  B-t,  §  16)  was  passed  to  pro- 
tect them,  liable  to  an  action  for  seizing  goods,  if  it  ultimately  turned 
out  that  the  goods  were  not  the  subject-matter  of  seizure,  even  though 
there  was  a  probable  cause  for  seizing  them.  Excise  officers  con- 
tinued in  this  situation  to  a  later  time,  upon  a  supposition  (I  be- 
lieve) that  the  statute  respecting  custom-house  officers  extended  to 
them ;  and  when  it  was  discovered  that  they  were  not  protected 
by  the  former  act,  the  legislature  made  a  similar  law  (33  Geo.  Ill,  c. 
70,  §  29)  for  their  protection.  So  in  the  cases  of  justices  of  the 
peace  (7  Jac.  I,  c.  3,  21  Jac.  I,  c.  12,  and  4  Geo.  II,  c.  44)  and  con- 
stables the  legislature  have  made  laws  in  their  favor  when  acting 
in  the  execution  of  their  office.  All  these  instances  show  the  pro- 
priety of  protecting  persons  acting  under  this  act  of  Parliament  when 
they  act  bona  fide;  but  the  legislature  not  having  given  them  any 
protection  except  when  they  seize  leather  of  a  certain  description, 
the  only  question  is  whether  the  leather  in  question  was  or  was  not 
the  subject  of  seizure;  and  that  question  is  against  the  defendants 
by  their  own  admission. 

On  the  other  point  made  at  the  bar,  I  am  at  a  loss  how  to  state  a 
question  about  it.  The  injury  done  to  the  plaintiff  is  by  the  imme- 
diate act  of  the  defendants,  and  not  a  consequence  arising  from  some 
other  act;  for  this  trespass  is  the  proper  remedy.  The  authorities 
cited  on  behalf  of  the  plaintiff  show  this.  We  are  therefore  bound 
to  give  judgment   against  the  defendants. 

Ash  HURST,  J.  This  seems  to  be  a  harsh  proceeding  against  the 
defendants.  They  are  bound  to  act  under  the  terrors  of  a  penalty, 
and  it  is  hard  that  they  should  be  liable  in  an  action  of  trespass 
for  a  mere  error  in  judgment;  but  the  legislature  have  not  provided 
for  such  a  case.  The  act  of  Parliament  only  authorizes  the  search- 
ers to  seize  goods  of  a  certain  denomination ;  the  goods  in  ques- 
tion are  not  of  that  description ;  therefore  the  seizure  is  illegal,  and 
consequently  the  defendants  are  trespassers. - 

2  See  Thompson  v.  Farrer,  9  Q.  B.  D.  372,  .3Si  (1882),  per  Cotton,  L.  J. : 
"The  construction  of  the  sixth  section  of  the  Merchant  Shipping  Act,  lS7<i, 
is  open  to  some  difficulty.  It  has  heen  contended  that  the  vessel  being  in 
fact  unsafe  is  a  condition  precedent  to  the  exercise  of  all  the  powers  given  by 
the  section.  But  this  cannot,  in  my  opinion,  be  the  true  meaning  of  the 
earlier  part  of  the  section  which  gives  rise  to  this  argument.  For  if  this  is 
the  true  construction,  a  vessel  could  not  lawfully  be  detained,  even  for  the 
purpose  of  being  surveyed,  unless  she  is  in  fact  unsafe.  This  is  Inconsistent 
with  the  first  subdivision,  which  expressly  gives  power  to  detain  provision- 
ally^ if  the  Board  of  Trade  have  reason  to  believe  the  ship  is  unsafe,  and  the 
contention  is  inconsistent  with  the  first  part  of  the  section  itself,  which  as- 
sumes that  a  ship  coming  under  the  provisions  of  this  part  of  the  section 
may  be  released,  which  in  the  case  of  a  ship  in  fact  unsafe  would  not  be 
right.     The  section  is  not  very  correctly  framed,  but  I  think  its  meaning  is 


534  BELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

THE  QUEEN  V.  WOOD. 

(Court  of  Queen's  Bench,  1855.     5  El.  &  Bl.  49.) 

Phipson,  on  an  earlier  day  in  this  term,  obtained  a  rule  nisi  for 
a  certiorari  to  remove  the  conviction  of  Mary  Wood,  after  men- 
tioned. 

It  appeared  by  affidavit  that  the  Local  Board  of  Plealth  of  Burslem, 
Staffordshire,  established  under  the  Public  Health  Act,  1848  (11  & 
12  \'^ict.  c.  G3.),  passed  a  by-law  in  the  words  following:  "All  oc- 
cupiers of  any  premises  within  the  district  shall  properly  cleanse  and 
remove  all  snow,  or  other  obstructions,  from  the  footpath  and  chan- 
nel opposite  their  respective  premises,  before  nine  of  the  clock  in 
the  forenoon  of  each  day." 

Mary  Wood,  widow,  the  occupier  of  a  mansion  house  and  grounds 
surrounding  the  same,  within  the  Burslem  district,  was  summoned 
on  the  information  of  Thomas  Povey,  inspector  of  nuisances  to  the 
board,  for  breach  of  this  by-law.  On  the  return  of  the  summons, 
her  attorney  admitted  the  breach  of  the  by-law,  by  Mrs.  Wood  hav- 
ing neglected  to  clear  some  snow  from  the  footpath  and  channel  op- 
posite to  her  house.  No  other  obstruction  was  complained  of.  Mrs. 
Wood's  attorney  contended  that  the  by-law  was  illegal.  The  magis- 
trate, Thomas  Bailey  Rose,  Esq.,  declined  entering  into  this  question, 
stating  that,  as  the  by-law  had  been  allowed,  it  was  his  duty  to  carry 
it  into  effect;    and  he  accordingly  convicted  Mrs.  Wood. 

Lord  Campbell,  C.  J.^  If  the  justice  had  heard  the  argument 
against  the  validity  of  the  by-law,  a  difficulty  might  pernaps  have 
arisen.  But  he  did  not  do  so ;  he  held  himself  bound  to  act  upon 
the  by-law  whether  or  not  it  was  ultra  vires  of  the  Local  Board  to 

that  a  ship  which  the  Board  of  Trade  have  reason  to  believe  to  be  unsafe 
may  be  detained,  and  after  such  investigation  or  inquiry  as  by  the  section 
is  binding  on  the  owner,  either  released  or  finally  detained.  The  first  part 
of  the  section  in  my  opinion  sums  up,  thougli  not  very  accurately,  the  sub- 
sequent detailed  provisions  of  the  section.  But  though  as  a  matter  of  pub- 
lic policy  it  AA'as  thought  right  that  a  power  should  be  given  to  the  Board  of 
Trade  to  detain  provisionally  ships  reasonably  believed  by  the  board  to  be 
unsafe,  it  was  obvious  that  this  might  produce  great  hardship  to  owners  of 
some  vessels,  and  the  tenth  section  gives  in  certain  cases  to  owners  of  vessels 
which  have  been  detained,  and  wliich  in  fact  are  not  unsafe,  compensation 
by  way  of  damages  for  their  detention,  this  compensation  being  payable, 
not  by  the  officers  of  the  board,  but  by  the  state  out  of  the  public  purse." 

The  relevant  portions  of  the  act  read  as  follows : 

"6.  Where  a  British  ship,  being  in  anj-  port  of  the  United  Kingdom,  is  by 
reason  of  the  defective  condition  of  her  hull,  equipments,  or  machinery,  or  by 
reason  of  overloading  or  improper  loading,  unfit  to  proceed  to  sea  without 
serious  danger  to  human  life,  having  regard  to  the  nature  of  the  service  for 
which  she  is  intended,  any  such  ship  (hereinafter  referred  to  as  'unsafe')  may 
be  provisionally  detained  for  the  purpose  of  being  surveyed  and  either  finally 
detained  or  released  as  follows :  (1)  The  Board  of  Trade,  if  they  have  reason 
to  believe,  on  complaint  or  otherwise,  that  a  British  ship  is  unsafe,  may  pro- 
visionally order  the  detention  of  the  ship  for  the  purpose  of  being  surveyed." 
3  Only  a  portion  of  the  opinion  of  Lord  Campbell,  C.  J.,  is  printed. 


Ch.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL  CONTROL.         535 

make  such  a  by-law,  inasmuch  as  it  had  been  allowed  under  section 
115.  We  think  that,  if  the  Local  Board  exceeded  their  powers  in 
making  the  by-law,  the  justice  exceeded  his  power  in  convicting, 
and  that  a  certiorari  may  go,  it  being  open  to  us  to  inquire  as  to  the 
validity  of  the  by-law.  It  would  be  monstrous  to  say  that  the  al- 
lowance by  the  Secretary  of  State  precludes  such  an  inquiry.  No 
power  is  given  to  him  to  legislate;  he  can  only  confer  authority  on 
a  by-law  made  conformably  to  the  statute.     *     *     '•' 

ErlE,  J.  It  is  clear  that,  though  the  certiorari  is  taken  away, 
there  is  an  exception  in  the  case  where  there  is  no  jurisdiction.  The 
question,  therefore,  is  whether  the  by-law  is  good.  Have  the  board, 
under  section  55,  any  authority  to  remove  all  snow?*  According 
to  my  opinion,  they  have  not.  Their  power,  as  has  been  clearly 
pointed  out  by  my  Lord,  is  confined  to  things  in  the  nature  of  manure. 
As  to  the  general  argument  from  expediency,  it  would,  in  my  opin- 
ion, have  been  expedient  to  give  a  general  power  to  remove  snow : 
but  it  is  not  done.  With  respect  to  the  jurisdiction  of  the  magis- 
trate, the  case  of  Regina  v.  Bolton,  1  Q.  B.  66,  lays  down  the  proper 
test.  If  the  magistrate  had  no  power  to  enter  into  the  inquiry,  we 
can  correct  what  has  been  done.  But,  had  the  by-law  been  confined 
to  "filth,"  and  the  magistrate  had  decided  that  snow  was  filth,  we 
must,  I  think,  have  held  the  conviction  good.^ 


MILLER  v.  HORTON  et  al. 

(Supreme  Jnclieial  Court  of  Massachusetts,  1891.     152  Mass.  540,   26  N.  E. 
100,   10  L.   K.  A.   110,   2.3  Am.   St.   Rep.   850.) 

Exceptions   from  superior  court,  Bristol  county. 

HoLMEvS,  J.  This  is  an  action  of  tort  for  killing  the  plaintiff's 
horse.  The  defendants  admit  the  killing,  but  justify  as  members  of 
the  board  of  health  of  the  town  of  Rehoboth,  under  an  order  ad- 
dressed to  the  board  and  signed  by  two  of  the  three  commissioners  of 
contagious  diseases  among  domestic  animals,  appointed  under  St. 
1S85,  c.  378,  and  acting  under  the  alleged  authority  of  St.  1887,  c. 
252,  §  13.  This  order  declared  that  it  was  adjudged  that  the  horse 
had  the  glanders,  and  that  it  was  condemned,  and  directed  the  defend- 
ants to  cause  it  to  be  killed.  The  judge  before  whom  the  case  was 
tried  found  that  the  horse  had  not  the  glanders,  but  declined  to  rule 
that  the  defendants  had  failed  to  make  out  their  justification,  and 
found  for  the  defendants.    The  plaintifif  excepted. 

4  The  section  gives  power  to  make  by-laws  for  the  removal  of  "all  dust, 
ashes,  rubbish,  filth,  manure,  clung,  aud  soil." 

■"'  As  to  this  last  point,  see  Brittiiin  v.  Kinnaird,  1  Br.  &  B.  432  (1819)  ; 
Mould  V.  AA'illiams,  5  Q.  B.  469  (1844) ;  Calder  v.  Halket,  3  Moore  P.  C.  28 
(1839).     See,  also,  Queen  v.  Rose,  24  L.  J.  Mag.  Cas.  130  (1855). 


536  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part   3 

The  language  of  the  material  part  of  section  13  of  the  act  of  1S87 
is:  "In  all  cases  of  farcy  or  glanders  the  commissioners,  having 
condemned  the  animal  infected  therewith,  shall  cause  such  animal  to 
be  killed  without  an  appraisal,  but  may  pay  the  owner,  or  any  other 
person,  an  equitable  sum  for  the  killing  and  burial  thereof."  Taken 
literally,  these  words  only  give  the  commissioners  jurisdiction  and 
power  to  condemn  a  horse  that  really  has  the  glanders.  The  question 
is  whether  they  go  further  by  implication,  .so  that,  if  a  horse  which  has 
not  the  disease  is  condemned  by  the  commissioners,  their  order  will 
protect  the  man  who  kills  it,  in  a  subsequent  suit  by  the  owner  for 
compensation. 

Xhe  main  ground  for  reading  into  the  statute  an  intent  to  make 
the  commissioners'  order  an  absolute  protection  is  that  there  is  no 
provision  for  compensation  to  the  owner  in  this  class  of  cases,  and, 
therefore,  unless  the  order  is  a  protection,  those  who  carry  it  out  will 
do  so  at  their  peril.  Such  a  construction,  when  once  known,  would 
be  apt  to  destroy  the  efificiency  of  the  clause,  as  few  people  could  be 
found  to  carry  out  orders  on  these  terms. 

On  the  other  hand,  this  same  absence  of  any  provision  for  com- 
pensation to  the  owner,  even  if  not  plainly  founded  on  the  assumption 
that  only  a  worthless  animal,  and  a  nuisance,  is  in  question,  still  would 
be  an  equally  strong  argument  for  keeping  to  the  literal  and  nar- 
rower interpretation.  If  the  Legislature  had  had  in  mmd  the  possible 
destruction  of  healthy  horses,  there  was  no  reason  in  the  world  why  it 
should  not  have  provided  for  paying  the  owners.  The  twelfth  section 
does  provide  for  paying  them  in  all  cases  where  they  are  not  in  fault, 
unless  this  is  an  exception.  When,  as  here,  the  horse  not  only  is  not 
to  be  paid  for,  but  may  be  condemned,  without  appeal,  and  killed,  with- 
out giving  the  owner  a  hearing,  or  even  notice,  the  grounds  are 
very  strong  for  believing  that  the  statute  means  no  more  than  it  says, 
and  is  intended  to  authorize  the  killing  of  actually  infected  horses 
only.  If  the  commissioners  had  felt  any  doubt,  they  could  have  had 
the  horse  appraised  under  section  12.  Whether  an  action  would  have 
lain  in  that  case,  we  need  not  decide. 

The  reasons  for  this  construction  seem  decisive  to  a  majority  of  the 
court  when  they  consider  the  grave  questions  which  would  arise  as 
to  the  constitutionality  of  the  clause,  if  it  were  construed  the  other 
way. 

The  thirteenth  section  of  the  act  of  1887,  by  implication,  declares 
horses  with  the  glanders  to  be  nuisances,  and  we  assume  in  favor  of 
the  defendant  that  it  may  do  so  constitutionally,  and  may  authorize 
them  to  be  killed  without  compensation  to  the  owners.  But  the  statute 
does  not  declare  all  horses  to  be  nuisances,  and  the  question  is  wheth- 
er, if  the  owner  of  the  horse  denies  that  his  horse  falls  within  the  class 
declared  to  be  so,  the  Legislature  can  make  the  ex  parte  decision  of  a 
board  like  this  conclusive  upon  him.  That  question  is  answered  by 
the  decision  in  Fisher  v.  McGirr,  1  Gray,  1,  61  Am.  Dec.  381.     It 


Ch.  9)      JURISDICTION,  CONCLUSIVENESS,  AND   JUDICIAL   CONTROL.         537 

is  decided  there  that  the  owner  has  a  right  to  be  heard,  and,  further, 
that  only  a  trial  by  jury  satisfies  the  provision  of  article  12  of  the 
Declaration  of  Rights,  that  no  subject  shall  be  deprived  of  his 
property  but  by  the  judgment  of  his  peers,  or  the  law  of  the  land. 

In  Belcher  v.  Farrar,  8  Allen,  325,  328,  it  was  said  that  "it  would 
violate  one  of  the  fundamental  principles  of  justice  to  deprive  a 
party  absolutely  of  the  free  use  and  enjoyment  of  his  estate  under  an 
allegation  that  the  purpose  to  which  it  was  appropriated,  or  the  mode 
of  its  occupation,  was  injurious  to  the  health  and  comfort  of  others, 
and  created  a  nuisance,  without  giving  the  owner  an  opportunity  to 
appear  and  disprove  the  allegation,  and  protect  his  property  from  the 
restraint  to  which  it  was  proposed  to  subject  it."  See,  also,  Sawyer 
V.  Board,  125  Mass.  182 ;   Winthrop  v.  Farrar,  11  Allen,  398. 

Of  course  there  cannot  be  a  trial  by  jury  before  killing  an  animal 
supposed  to  have  a  contagious  disease,  and  we  assume  that  the  Legis- 
lature may  authorize  its  destruction  in  such  emergencies  without  a 
hearing  beforehand.  But  it  does  not  follow  that  it  can  throw  the 
loss  on  the  owner  without  a  hearing.  If  he  cannot  be  heard  before- 
hand he  may  be  heard  afterwards.  The  statute  may  provide  for  pay- 
ing him  in  case  it  should  appear  that  his  property  was  not  what  the 
Legislature  has  declared  to  be  a  nuisance,  and  may  give  him  his  hear- 
ing in  that  way.  If  it  does  not  do  so,  the  statute  may  leave  those  who 
act  under  it  to  proceed  at  their  peril,  and  the  owner  gets  his  hearing 
in  an  action  against  them. 

An  illustration,  although  not  strictly  an  instance  of  the  former 
mode,  may  be  found  in  the  statute  authorizing  firemen  or  engineers 
of  fire  departments  to  order  houses  to  be  pulled  down  in  order  to  pre- 
vent the  spreading  of  a  fire,  and  making  the  town  answerable  to  the 
house  owner  except  in  certain  cases  in  which  the  house  is  practically 
worthless  because  it  would  have  burned  if  it  had  not  been  destroyed. 
Pub.  St.  c.  35,  §§  3-5.  No  doubt  the  order  would  be  conclusive 
in  its  legislative  capacity  or  "so  far  as  the  res  is  concerned,"  as  is 
said  in  Salem  v.  Railroad  Co.,  98  Mass.  431,  449,  96  Am.  Dec.  650 ; 
that  is  to  say,  that  the  house  should  be  pulled  down.  But  the  owner 
is  preserved  his  right  to  a  hearing  in  a  subsequent  proceeding  for 
compensation.  On  the  other  hand,  a  case  where  a  party  proceeds  at 
his  peril  is  when  he  pulls  down  a  house  for  the  same  object  without 
the  authority  of  statute.  It  is  said  that  if  the  destruction  is  nec- 
essary, he  is  not  liable.  But  by  the  common  law  as  understood  in  this 
commonwealth,  "if  there  be  no  necessity,  then  the  individual  who  did 
the  act  shall  be  responsible."  Shaw,  C.  J.,  in  Taylor  v.  Plymouth, 
8  Mete.  462,  465 ;  Philadelphia  v.  Scott,  81  Pa.  80,  87,  22  Am.  Rep. 
738.  See  Mitchell  v.  Harmony,  13  How.  115,  134,  135,  14  L.  Ed. 
75.  This  means  that  the  determination  of  the  individual  is  subject  to 
revision  by  a  jury  in  an  action,  and  is  not  conclusive  on  the  owner  of 
the  house. 


538  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

So  in  Blair  v.  Forehand,  100  Mass.  136,  97  Am.  Dec.  82,  1  Am. 
Rep.  94,  where  it  was  held  that  a  statute  constitutionally  might  au- 
thorize the  killing  of  unlicensed  dogs  as  nuisances,  it  was  assumed 
that  the  question  whether  the  particular  dog  killed  was  unlicensed  was 
open  in  an  action  against  the  officer  who  killed  it,  and  that  if  he  killed 
a  licensed  dog  he  would  be  liable  in  tort;  in  other  words,  that  he 
proceeded  in  that  respect  at  his  own  risk.  Page  143,  of  100  Mass. 
(D:  Am.  Dec.  82,  1  Am.  Rep.  94),  citing  Shaw,  C.  J.,  in  Tower  v. 
Tower,  18  Pick.  262.  It  could  have  made  no  difference  in  that  case  if 
a  board  of  three  had  been  required  to  decide  ex  parte  beforehand 
whether  the  dog  was  licensed. 

In  Salem  v.  Railroad  Co.,  98  Mass.  431,  96  Am.  Dec.  650,  it  was 
decided,  in  agreement  with  the  views  which  we  have  expressed,  that 
the  decision  of  a  board  of  health  that  a  nuisance  existed  on  certain 
premises,  and  the  order  of  the  board  that  it  be  removed  at  the  ex- 
pense of  the  owner,  were  not  conclusive  upon  the  owner  in  a  sub- 
sequent action  against  him  to  recover  the  expense,  he  having  had  no 
notice  or  opportunity  to  be  heard.  The  general  rule  is  that  a  judg- 
ment in  rem,  even  when  rendered  by  a  regularly  constituted  court, 
after  the  fullest  and  most  formal  trial,  is  not  conclusive  of  the  facts 
on  which  it  proceeds  against  persons  not  entitled  to  be  heard  and  not 
heard  in  fact,  although  it  does  change  or  establish  the  status  it  deals 
with  as  against  all  the  w^orld  from  the  necessities  of  the  case,  and 
frequently  by  express  legislation.  Brigham  v.  Fayerweather,  140 
Mass.  411,  413,  5  N.  E.  265. 

It  is  true  that  it  is  said  in  Salem  v.  Railroad  Co.  that  the  board's 
determination  of  questions  of  discretion  and  judgiTient  in  the  dis- 
charge of  their  duties  would  protect  all  those  employed  to  carry  such 
determinations  into  effect.  The  remark  is  obiter,  and  it  is  doubtful 
perhaps  on  reading  the  whole  case  whether  it  means  that  the  determi- 
nation would  protect  them  in  an  action  for  damages  when  the  statute 
provided  no  compensation  for  property  taken  which  is  not  a  nuisance. 
To  give  it  such  an  effect  as  a  judgment  merely,  would  be  inconsistent 
with  the  point  decided,  and  with  Brigham  v.  Fayerweather.  We  are 
not  prepared  to  admit  that  a  condemnation  by  the  present  board 
under  section  13  could  be  made  conclusive  of  the  fact  that  the  plain- 
tiff's horse  had  the  glanders,  in  the  present  action.  See,  further,  Hol- 
comb  V.  Moore,  4  Allen,  529;  Foley  v.  Haverhill,  144  Mass.  352, 
354,  11  N.  E.  554. 

But  we  are  led  by  the  dictum  in  Salem  v.  Railroad  Co.  to  consider 
another  possible  suggestion.  It  may  be  said,  suppose  that  the  decision 
of  the  board  is  not  conclusive  that  the  plaintiff's  horse  had  the 
glanders,  still  the  Legislature  may  consider  that  self-protection  re- 
quires the  immediate  killing  of  all  horses  which  a  competent  board 
deem  infected,  whether  they  are  so  or  not,  and,  if  so,  the  innocent 
horses  that  are  killed  are  a  sacrifice  to  necessary  self-protection, 
and  need  not  be  paid  for. 


Cll.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL   CONTROL.         539 

In  Train  v.  Disinfecting-  Co.,  144  Mass.  523,  11  N.  E.  929,  59 
Am.  Rep.  113,  it  was  held  that  all  imported  rags  might  be  required  to 
be  put  through  a  disinfecting  process  at  the  expense  of  the  owner.  Of 
course,  the  order  did  not  mean  that  the  Legislature  or  board  of  health 
declared  all  imported  rags  to  be  infected,  but  simply  that  the  danger 
was  too  great  to  risk  an  attempt  at  discrimination.  If  the  Legisla- 
ture could  throw  the  burden  on  owners  of  innocent  rags  in  that  case, 
why  could  it  not  throw  the  burden  on  the  owners  of  innocent  horses 
in  this?  If  it  could  order  all  rags  to  be  disinfected,  why  might  it 
liot  have  ordered  such  rags  to  be  disinfected  as  a  board  of  three 
should  determine  summarily,  and  without  notice  or  appeal?  The 
latter  provision  would  have  been  more  favorable  to  owners,  as  they 
would  have  had  a  chance  at  least  of  escaping  the  burden,  and  it 
would  stand  on  the  same  ground  as  the  severer  law. 

The  answer,  or  a  part  of  it,  is  this :  Wliether  the  motives  of  the 
Legislature  are  the  same  or  not  in  the  two  cases  supposed,  it  declares 
different  things  to  be  dangerous  and  nuisances  unless  disinfected. 
In  the  one,  it  declares  all  imported  rags  to  be  so;  in  the  other,  only 
all  infected  rags.  Within  limits,  it  may  thus  enlarge  or  diminish 
the  number  of  things  to  be  deemed  nuisances  by  the  law,  and  courts 
cannot  inquire  why  it  includes  certain  property,  and  whether  the 
motive  was  to  avoid  an  investigation.  But  wherever  it  draws  the 
line,  an  owner  has  a  right  to  a  hearing-  on  the  question  whether  his 
property  falls  within  it,  and  this  right  is  not  destroyed  by  the  fact 
that  the  line  might  have  been  drawn  so  differently  as  unquestionably 
to  include  that  property.  Thus,  in  the  first  case,  the  owner  has  a  right 
to  try  the  question  whether  his  rags  were  imported;  in  the  second, 
whether  they  were  infected.  His  right  is  no  more  met  in  the  second 
case  by  the  fact  that  the  Legislature  might  have  made  the  inquiry 
immaterial  by  requiring  all  imported  rags  to  be  disinfected,  than  it 
would  be  in  the  first  by  the  suggestion  that  possibly  the  Legislature 
might  require  all  rags  to  be  put  through  the  same  process  whether 
imported  or  not.  But  if  the  property  is  admitted  to  fall  within  the 
line,  there  is  nothing  to  try,  if  the  line  drawn  is  a  valid  one  under 
the  police  power.  All  that  Train  v.  Disinfecting  Co.  decided  was 
that  the  line  there  considered  was  a  valid  one. 

Still  it  may  be  said,  if  self-protection  required  the  act,  why  should 
not  the  owner  bear  the  loss?  It  may  be  answered  that  self-protection 
does  not  require  all  that  is  believed  to  be  necessary  to  that  end,  nor 
even  all  that  is  reasonably  believed  to  be  necessary  to  that  end. 
It  only  requires  what  is  actually  necessary.  It  would  seem  doubtful 
at  least  whether  actual  necessity  ought  not  to  be  the  limitation  when 
the  question  arises  under  the  constitution  between  the  public  and  an 
individual.  Such  seems  to  be  the  law  as  between  private  parties  in 
this  commonwealth  in  the  case  of  fires,  as  we  have  seen.  It  could  not 
be  assumed  as  a  general  principle  without  discussion  that  even  ne- 
cessity would  exonerate  a  party  from  civil  liability  for  a  loss  inflicted 


540  RELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part    3 

knowingly  upon  an  innocent  person  who  neither  hy  his  person  nor 
his  property  threatens  any  harm  to  the  defendant.  It  has  been 
thought  by  great  lawyers  that  a  man  cannot  shift  his  misfortunes 
upon  his  neighbor's  shoulders  in  that  way  when  it  is  a  question  of 
damages,  although  his  act  may  be  one  for  which  he  would  not  be 
punished.  Gilbert  v.  Stone,  Aleyn,  35,  Style,  72  ;  Scott  v.  Shepherd, 
2  W.  Bl.  892,  896.  Upon  this  we  express  no  opinion.  It  is  enough 
to  say  that  in  this  case  actual  necessity  only  required  the  destruc- 
tion of  infected  horses,  and  that  was  all  that  the  Legislature  pur- 
ported to  authorize. 

Again,  there  is  a  pretty  important  difference  of  degree,  at  least 
(Rideout  v.  Knox,  148  Mass.  368,  372,  19  N.  E.  390,  2  L.  R.  A.  81, 
12  Am.  St.  Rep.  560),  between  regulating  the  precautions  to  be  taken 
in  keeping  property,  especially  property  sought  to  be  brought  into 
the  state,  and  ordering  its  destruction.  We  cannot  admit  that  the 
Legislature  has  an  unlimited  right  to  destroy  property  without  com- 
pensation, on  the  ground  that  destruction  is  not  an  appropriation  to 
public  use  within  article  10  of  the  declaration  of  rights.  When  a 
healthy  horse  is  killed  hy  a  public  officer,  acting  under  a  general  stat- 
ute, for  fear  that  it  should  spread  disease,  the  horse  certainly  would 
seem  to  be  taken  for  public  use  as  truly  as  if  it  were  seized  to  drag 
an  artillery  wagon.  The  public  equally  appropriates  it,  whatever 
they  do  with  it  afterwards.  Certainly  the  Legislature  could  not  de- 
clare all  cattle  to  be  nuisances,  and  order  them  to  be  killed  without 
compensation.  Watertown  v.  Mayo,  109  Mass.  315,  319,  12  Am.  Rep. 
694;  In  re  Jacobs,  98  N.  Y.  98,  109.  It  does  not  attempt  to  do  so. 
As  we  have  said,  it  only  declares  certain  diseased  animals  to  be  nui- 
sances. And  even  if  we  assume  that  it  could  authorize  some  trifling 
amount  of  innocent  property  to  be  destroyed  as  a  necessary  means  to 
the  abatement  of  a  nuisance,  still,  if  in  this  section  13  it  had  added  in 
terms  that  such  healthy  animals  as  should  be  killed  by  mistake  for 
diseased  ones  should  not  be  paid  for,  we  should  deem  it  a  serious 
question  whether  such  a  provision  could  be  upheld.  See,  further, 
Hutton  V.  Camden,  39  N.  J.  Law,  122,  23  Am.  Rep.  203;  Hale  v. 
Lawrence,  21  N.  J.  Law,  714,  47  Am.  Dec.  190;  Grant  v.  U.  S.,  1 
Ct.  CI.  41 ;  Wiggins  v.  U.  S.,  3  Ct.  CI.  412 ;  Mitchell  v.  Harmony,  13 
How.  115,  134,  14  L.  Ed.  75. 

For  these  reasons,  the  literal,  and,  as  we  think,  the  true,  construc- 
tion of  section  13  seems  to  us  the  only  safe  one  to  adopt,  and  ac- 
cordingly we  are  of  opinion  that  the  authority  and  jurisdiction  of  the 
commissioners  to  condemn  the  plaintiff's  horse  under  section  13  was 
conditional  upon  its  actually  having  the  glanders.  If  this  be  so, 
their  order  would  not  protect  the  defendants  in  a  case  where  the 
commissioners  acted  outside  their  jurisdiction.  Fisher  v.  McGirr, 
1  Gray,  1,  45,  61  Am.  Dec.  381.  The  fact  as  to  the  horse  having  the 
disease    was    open   to    investigation    in   the    present    action,    and,    on 


Ch.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL   CONTROL.         541 

the  finding  that  it  did  not  have  it,  the  plaintiff  was  entitled  to  a  ruling 
that  the  defendants  had  failed  to  make  out  their  justification. 

In  view  of  our  conclusion  upon  the  main  question,  we  have  not 
considered  whether  an  order  signed  by  two  members  of  the  board, 
upon  an  examination  by  one,  satisfies  the  statute,  or  whether  cases 
like  Ruggles  v.  Nantucket,  11  Cush.  433,  and  Parsons  v.  Pettingill,  11 
Allen,  o07,  apply. 

Exceptions  sustained. 

Devens,  J.  (dissenting).^  I  am  unable  to  concur  in  the  opinion  of 
the  majority  of  the  court  in  the  narrow  and  limited  construction 
which  they  give  to  section  13  of  chapter  253  of  Acts  of  1887,  or 
in  the  view  expressed  of  its  constitutionality  if  otherwise  construed. 

:|:       *       * 

From  the  nature  of  the  case,  where,  as  under  Gen.  St.  c.  26,  the 
res  is  an  alleged  "nuisance,  source  of  filth,  cause  of  sickness,"  as  an 
embankment  by  which  running  waters  are  stopped  and  filth  accu- 
mulated, or  like  infected  clothes  from  persons  diseased,  or  rotting 
and  putrescent  meats  on  shipboard  or  in  warehouses,  or  animals 
afflicted  with  contagious  diseases,  and  many  other  noxious  objects, 
action  by  boards  of  health  must  be  prompt  and  summary.  Powers  to 
determine  whether  these  objects  should  be  removed  or  destroyed 
are  undoubtedly  very  high  powers,  but  they  must,  of  necessity,  be 
confided  to  boards  of  administration  in  order  that  the  public  safety 
may  be  guarded.  Although  of  a  quasi  judicial  nature,  they  must  be 
exercised  often  without  the  delays  which  necessarily  attend  for- 
mal notices  and  formal  trials;  and  where  adjudications  are  fairly  and 
honestly  made,  even  if  mistakes  may  sometimes  occur,  they  should 
be  held  conclusive,  so  far  as  the  res  with  which  they  deal  is  concerned. 
Certainly  no  one  would  voluntarily  undertake  the  heavy  responsibili- 
ties of  a  board  of  health,  or,  as  in  the  case  at  bar,  of  cattle  commis- 
sioners, if  they  were  to  be  made  responsible  in  damages  for  errors 
of  judgment  which  they  might  commit.     =i^     *     * 

Applying  these  principles  to  the  case  at  bar,  they  are  decisive.  The 
Legislature  has  decided  that  a  horse  infected  with  glanders  is  so 
dangerous  to  the  public  health,  whether  of  other  valuable  domestic 
animals  or  of  man,  that  it  should  be  destroyed  on  account  of  its 
dangerous  character,  and  should  cease  to  be  entitled  to  the  usual 
protection  of  property.  It  is  not  an  objection  to  this  law  that  it  has 
failed  to  provide  compensation  to  the  owner,  as  the  animal  is  itself  in 
its  view  a  nuisance  of  serious  danger  to  the  community.  It  has  em- 
powered a  respectable  tribunal  with  powers  similar  to  those  of  a  board 
of  health  to  determine  whether  an  animal  is  of  the  class  described 
in  the  statute.  The  exigency  of  the  case  does  not  permit,  at  least  in 
the  opinion  of  the  Legislature,  of  notice,  appeal,  or  other  modes  of  re- 
viewing the  decision  of  such  a  tribunal.     This  appears  to  me  a  law- 

6  Only  a  portion  of  the  opinion  of  Devens,  J.,  is  printed. 


542  iu;lief  against  administrative  action.  (Part  2 

ful  exercise  of  the  police  power,  and  the  decision  should  be  held 
conclusive  in  order  that  the  community  may  be  protected,  and  that 
those  intrusted  with  the  execution  of  the  law  may  safely  assume  the 
responsibilities  imposed  upon  them.  The  court,  therefore,  in  my 
opinion,  correctly  refused  to  rule  that  the  act  of  1887,  c.  252,  by 
which  Pub.  St.  c.  90,  was  repealed,  was  unconstitutional.  *  *  '^ 
I  am  authorized  to  say  that  Mr.  Justice  C.  Ai.LiiN  and  Air.  Justice 
Knowi^ton  concur  in  this  opinion.' 


SECTION    69.— SAME— QUESTIONS    OF    FACT 


ALLBUTT   V.    GENERAL   COUNCIL   OF    MEDICAL   EDU- 
CATION AND  REGISTRATION  et  al. 

(Court   of   Appeal,    18S9.     23   Q.   B.    Div.   400.) 

Appeal  by  the  plaintiff  against  the  judgment  of  Pollock,  B.,  at 
the  trial  of  the  action. 

The  plaintiff,  Henry  Arthur  Allbutt,  Avas  a  medical  practitioner, 
who  had  been  registered  as  such  under  the  provisions  of  the  Medical 
Act,  1858  (21  &  22  Vict.  c.  90).  The  defendants  were  the  General 
Council  of  Medical  Education  and  Registration  of  the  United  King- 
dom (constituted  under  that  act)  and  W.  J.  C.  Miller,  their  registrar.'^ 

Lopes,  L.  J.,  delivered  the  judgment  of  the  court  (Lord  Coi^ERiDGt;, 
C.  J.,  and  LiNDLEY  and  Lopes,  L.  JJ.,  sitting)  as  follows : 

7  By  chapter  195,  §  3,  of  the  Laws  of  Massachusetts  of  1892,  the  following 
words  were  added  to  Laws  1887,  c.  252,  §  3 :  "And  may  also  pay  a  reason- 
able compensation  for  the  animal  destroyed,  should  a  post  mortem  examina- 
tion prove  that  said  aniinal  was  free  from  the  disease  for  which  it  was  con- 
demned."    See,  now,  Rev.  Laws  1902,  c.  90,  §  6. 

Ill  Com.  V.  Sisson,  189  Mass.  217,  75  N.  E.  G19,  1  L.  R.  A.  (N.  S.)  752.  lc:i 
Am.  St.  Rep.  G30  (1905),  the  court  said:  "The  difference  between  the  majority 
and  the  minority  of  the  court  in  Miller  v.  Horton  was  on  the  construction  m' 
the  act  there  in  question." 

"Boards  of  health,  under  the  acts  referred  to  (Laws  N.  Y.  1885,  c.  270), 
cannot  as  to  any  existing  state  of  facts,  by  their  determination  make  thnt 
a  nuisance  which  is  not  in  fact  a  nuisance.  They  have  no  jurisdiction  tu 
make  any  order  or  ordinance  abating  an  alleged  nuisance,  unless  there  be 
in  fact  a  nuisance.  It  Is  the  actual  existence  of  a  nuisance  which  gives 
them  jurisdiction  to  act."  People  ex  rel.  Copcutt  v.  Board  of  Health  of 
Yonkers,  110  N.  Y.  1,  35  N.  E.  320,  23  L.  R.  A.  481,  37  Am.  St.  Rep.  552 
(1893),  ante,  p.  139. 

See,  also.  Underwood  v.  Green,  42  N.  Y.  1-10  (1870);  Lowe  v.  Conrny, 
120  Wis.  151,  97  N.  W.  942.  GO  L.  R.  A.  907,  102  Am.  St.  Rep.  983  (1904). 
ante,  p.  306:  In  re  Smith,  14G  N.  Y.  G8.  40  N.  E.  497,  28  L.  R.  A.  820,  48 
Am.  St.  Rep.  7G9  (1895). 

8  Only  a  portion  of  this  case  is  printed. 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND   JUDICIAL   CONTROL.         543 

The  plaintiff  complains  that  the  defendants  (the  General  Council 
of  Medical  Education  and  Registration  of  the  United  Kingdom)  have 
wrongfully  and  unlawfully  erased  his  name  from  the  medical  register, 
and  asks  for  a  mandamus  commanding  the  defendants  to  restore  his 
name  to  the  register.  The  plaintiff  also  complains  that  the  defend- 
ants have  libeled  him,  by  printing  and  publishing  of  him  in  a  book,  en- 
titled Minutes  of  the  General  Council,  that  his  name  had  been  erased 
from  the  jNIedical  Registry,  page  317,  and  that  in  the  opinion  of  the 
council  the  plaintiff  had  committed  the  offense  charged  against  him — 
that  is  to  say,  of  having  published  and  publicly  caused  to  be  sold  a 
work  entitled  "The  Wife's  Handbook,"  in  London  and  elsewhere, 
and  at  so  low  a  price  as  to  bring  the  work  within  the  reach  of  both 
sexes,  to  the  detriment  of  public  morals,  and  that  the  offense  was, 
in  the  opinion  of  the  council,  infamous  conduct  in  a  professional 
respect.  With  regard  to  the  erasure  of  the  plaintiff's  name,  the  plain- 
tiff says  that  the  defendants  acted  without  jurisdiction,  that  there 
was  no  evidence  of  any  infamous  conduct  in  a  professional  respect, 
and,  therefore,  nothing  upon  which  to  found  their  jurisdiction.  The 
defendants  say,  on  the  other  hand,  that  they  lawfully,  and  in  the 
exercise  of  a  jurisdiction  conferred  upon  them  by  the  act  of  Parlia- 
ment, struck  the  plaintiff's  name  off  the  register,  and  that,  as  there 
was  jurisdiction  to  enter  upon  this  inquiry,  they  (the  Medical  Coun- 
cil) are  the  sole  judges  of  what  was  done  during  the  inquiry  which 
they  had  jurisdiction  to  initiate.  The  learned  judge  thought  that 
there  was  no  evidence  of  any  of  the  complaints  which  he  ought  to 
leave  to  the  jury,  and  gave  judgment  for  the  defendants. 

The  section  upon  which  the  council  have  acted  in  erasing  the  plain- 
tiff's name  is  the  twenty-ninth  section  of  21  &  23  Vict.  c.  90,  which 
says:  "If  any  registered  medical  practitioner  shall  be  convicted  in 
England  or  Ireland  of  any  felony  or  misdemeanor,  or  in  Scotland 
of  any  crime  or  offense,  or  shall  after  due  inquiry  be  judged  by  the 
general  council  to  have  been  guilty  of  infamous  conduct  in  any  pro- 
fessional respect,  the  general  council  may,  if  they  see  fit,  direct  the 
registrar  to  erase  the  name  of  such  medical  practitioner  from  the 
register."  Having  regard  to  the  nature  of  the  complaint,  the  council 
clearly  had  jurisdiction  to  enter  upon  the  inquiry,  and,  having  that 
jurisdiction,  are  constituted  by  the  legislature  the  sole  judges  whether 
that  complaint  was  substantiated.  To  use  the  words  of  Cockburn,  C. 
J.,  in  Ex  parte  La  Mert,  33  L.  J.  (Q.  B.)  70 :  "This  court  has  no 
more  power  to  review  their  decision  than  they  would  have,  in  the 
present  mode  of  proceeding,  of  determining  whether  the  facts  had 
justified  a  conviction  for  felony  or  misdemeanor  under  the  first 
branch  of  the  section." 

It  is  said  by  the  plaintiff'  that  there  was  no  "due  inquiry,"  and  that 
that  question  ought  to  have  been  left  to  the  jury.  We  think  that 
there  was  no  evidence  of  any  absence  of  a  due  inquiry  which  ought 
to  have  been  left  to  the  jury.     All  charges  of  mala  fides  were  with- 


544  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

drawn,  and  it  was  admitted  that  the  council  acted  honestly,  and  with- 
out any  improper  feeling  or  motive  towards  the  plaintiff.  We  can 
find  nothing  irregular  in  the  proceedings  of  the  council ;  the  plain- 
tiff had  every  opportunity  afforded  to  him  of  bringing  his  case 
before  the  council,  who  heard  his  counsel  and  his  evidence,  and  ad- 
judicated thereon.     *     *     ^  ^    ' 


FIRE  DEPARTMENT  OF  CITY  OF  NEW  YORK  v.  GILMOUR. 

(Court  of  Appeals  of  New  York.  189G.     14i>  N.  Y.  453,  44  N.  E.  177,  o2  Am. 
St.    Rep.   748.) 

Appeal  from  Common  Pleas  of  New  York  City  and  County,  Gen- 
eral Term. 

Action  by  the  Fire  Department  of  the  City  of  New  York  against 
John  Gilmour  to  recover  penalty  imposed  for  refusal  to  obey  an 
order  of  the  board  of  fire  commissioners.  There  was  judgment  for 
plaintiff,  which  was  reversed  by  the  General  Term  (4  Misc.  Rep. 
203,  23  N.  Y.  Supp.  1022),  and  from  the  order  of  reversal  plaintiff 
appeals.     Affirmed. 

This  action  was  brought  in  a  district  court  in  the  city  of  New  York, 
to  recover  of  the  defendant  a  penalty  of  $25  for  neglect  on  his  part 
to  obey  an  order  dated  May  21,  1892,  purporting  to  have  been  made 
under  the  authority  of  the  board  of  commissioners  of  the  fire  depart- 
ment of  the  city  of  New  York,  requiring  him,  within  five  days  from 
the  service  of  the  order,  to  build  a  wall  of  stone,  brick,  or  other  fire- 
proof material,  not  more  than  18  feet  in  height,  around  the  yard  of 
premises  87  White  street,  in  the  city  of  New  York,  in  rear  of  the 
building  thereon,  and  prohibiting  him  from  storing  in  the  yard  boxes 
of  wood  to  a  height  above  a  point  12  inches  below  the  top  of  the 
wall.  The  defendant  occupied  the  building  and  yard  87  White  street, 
using  the  yard  (a  space  about  60  by  35  feet)  for  the  storing  of  pack- 
ing boxes  manufactured  by  him  at  another  place,  and  had  so  used  the 
yard  for  a  period  of  about  14  years.  The  boxes  were  piled  at  times 
as  high  as  20  to  30   feet. 

The  order  contains  a  recital  that  the  packing  boxes  so  stored  were 
combustible,  and  were  kept  and  stored  in  such  quantity  as  to  be 
dangerous,  "and  the  same  is  considered  dangerous  in  causing  and 
promoting  fires,  and  prejudicial  to  the  safety  of  life  and  property, 
and  in  its  present  condition  a  violation  of  law."  The  order  refers 
to  chapter  410  of  the  Laws  of  1882  (Consolidation  Act)  as  the  basis 
of  the  order.  By  section  463  of  that  act,  the  board  of  fire  commis- 
sioners, and  its  officers  and  agents  under  their  direction,  or  the  di- 
rection of  either  of  the  commissioners,  are  empowered  to  "enter  any 

9  See,  also.  Bogle  v.  Sherborne  Local  Board,  46  Justice  of  Peace.  675 
(1S80);    Attorney  General  v.  Great  Western  Ry.  Co.,  4  Cli.   D.  735    (1876). 


Ch.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL  CONTROL.         545 

building  or  premises  where  any  merchandise,  gunpowder,  firewood, 
boards,  shingles,  shavings,"  etc.,  "or  other  combustible  materials  may 
be  lodged,  and  upon  finding  that  any  of  them  are  defective  or  dan- 
gerous, or  that  a  violation  of  this  title  exists  therein,  may  deliver  a 
written  or  printed  notice  containing  an  extract  from  this  title  of  the 
provisions  in  reference  thereto,  and  notice  of  any  violation  thereof, 
and  notice  to  remove,  amend  or  secure  the  same  within  a  period  to 
be  fixed  therein."  The  section  proceeds  to  declare  that,  in  case  of 
neglect  or  refusal  on  the  part  of  the  occupant  or  of  the  possessor 
of  such  combustible  materials  "so  to  remove  or  amend  or  secure  the 
same  within  the  time  and  in  the  manner  directed  by  the  said  com- 
missioners in  such  notice,  the  party  offending  shall  forfeit  and  pay, 
in  addition  to  any  penalty  otherwise  imposed,  the  sum  of  twenty- 
five  dollars,  and  the  further  sum  of  five  dollars  for  each  day's  neglect," 
etc.  Attached  to  the  notice  and  order  served  on  the  defendant  was 
a  copy  of  section  463,  and  also  of  section  467  of  the  act. 

The  surveyor  of  combustibles  was  the  only  witness  sworn  on  the 
trial.  He  testified  that  he  made  an  inspection  of  87  White  street, 
and  was  directed,  before  going  there,  to  report  against  the  place 
"if  they  did  not  have  a  proper  wall  around  it,  and  a  large  number  of 
boxes  were  stored  there."  He  made  the  report,  and  the  order  was 
thereupon  issued.  The  defendant  sought  to  show  by  the  witness 
facts  bearing  upon  the  condition  of  the  premises,  their  surround- 
ings, and  the  absence  of  danger  or  conflagration  from  the  boxes  piled 
in  the  yard.  Most  of  the  questions  put  to  the  witness  bearing  upon 
the  question  of  the  propriety  or  reasonableness  of  the  order  were 
excluded  by  the  justice,  on  the  ground  that  the  court  could  not  con- 
sider the  matter.  The  defendant,  on  the  conclusion  of  the  plain- 
tift''s  case,  oft'ered  to  prove  by  two  witnesses  a  variety  of  facts  which 
were  enumerated,  bearing  upon  the  question  of  the  reasonableness 
of  the  order,  and  to  show  that  the  use  made  by  him  of  the  premises 
did  not  involve  any  danger  of  fire  beyond  the  ordinary  danger  attend- 
ing the  ordinary  uses  of  property.  The  justice  refused  to  hear  the 
evidence,  saying  "the  question  before  the  court  is,  has  there  been 
a  refusal  to  comply  with  the  order  of  the  board?  The  court  regrets 
that  it  cannot  go  into  the  question  whether  the  order  was  necessary, 
or  whether  the  department  acted  properly."  The  court  rendered 
judgment  for  the  plaintiff'  for  the  penalty  given  by  statute,  which  was 
reversed  on  appeal  to  the  General  Term  of  the  New  York  Common 
Pleas,  and  from  the  order  of  reversal  the  plaintiff  brings  this  appeal. 

Andrews,  C.  J.  (after  stating  the  facts). ^°  The  action  was  tried  and 
determined  by  the  justice  of  the  district  court  upon  the  theory  that 
the  determination  of  the  board  of  fire  commissioners  that  the  use 
made  by  the  defendant  of  the  yard  of  his  premises  for  the  piling 

10  Only  a  i>ortion  of  the  opinion  of  Anclre^YS,   C.  J.,  is  printed. 
Fe.Adm.Law — 35 


546  RKLIIOF   AGAINST   ADMIXKSTKATIVE   ACTION.  (Part    2 

of  boxes  was  dangerous,  as  being  likely  to  cause  or  promote  a  con- 
flagration, to  the  prejudice  of  life  and  property,  was  conclusive, 
and  not  open  to  inquiry  in  an  action  brought  for  the  penalty,  given 
by  section  463  of  the  consolidation  act.  It  was  upon  this  view  of 
the  law  that  the  justice  excluded  the  evidence  ofifered  by  the  defend- 
ant to  show  that,  in  fact,  the  use  made  by  him  of  the  yard  did  not 
involve  any  unusual  risk  of  firej  either  from  the  inherent  nature  of 
the  property  stored  therein,  or  in  promoting  a  conflagration  originat- 
ing on  adjacent  premises.  This,  the  justice  declared,  he  could  not 
consider,  but  was  confined  to  the  simple  inquiry  whether  the  order 
of  the  board  of  commissioners  had  been  disobeyed. 

We  think  the  justice  erred  in  the  principle  upon  which  he  proceed- 
ed. There  can  be  no  doubt  of  the  power  of  the  Legislature  to  enact 
regulations  for  the  protection  of  cities  or  villages  against  the  serious 
dangers  from  conflagrations.  It  is  one  of  the  subjects  to  which 
the  police  power  of  the  state  extends,  and  there  is  no  one  in  the  wide 
range  of  this  power  upon  which  the  Legislature  has  more  frequently 
acted.  It  may  directly  enact  a  code  of  regulations  applicable  to  ex- 
posed localities,  or,  as  is  more  commonly  done,  it  may  invest  munici- 
palities with  the  power  to  pass  ordinances  regulating  the  subject. 
The  authority  given  in  most  charters  of  municipalities  to  the  legis- 
lative body  to  fix  fire  limits,  to  prohibit  the  erection  of  buildings  there- 
in of  wood  or  other  combustible  materials,  the  storing  of  gunpowder 
or  other  explosive  compounds  in  quantities  and  under  circumstances 
hazardous  to  life  and  property,  are  among  the  familiar  instances  of 
the  delegated  power.  Regulations  on  this  subject  are  restrictions  of 
personal  freedom  and  the  free  use  of  property.  But  they  are  jus- 
tified by  public  necessity,  and  so  are  within  the  acknowledged  power 
of  the  Legislature. 

The  Legislature,  by  section  463  of  the  consolidation  act,  conferred 
upon  a  subordinate  department  of  the  city  government  the  power 
to  determine  in  specific  cases  whether  the  use  of  property  for  storage 
of  combustible  materials  by  the  owner  or  occupant  was  a  menace  to 
the  public  safety,  and,  upon  the  determination  of  the  board  of  com- 
missioners that  such  use  was  dangerous,  authorized  an  order  to  be 
made  by  the  board  for  the  discontinuance  of  such  use  or  the  regula- 
tion thereof,  upon  disobedience  to  which  the  owner  or  occupant  is  sub- 
jected to  a  penalty.  It  is  manifest  that  if  an  irreviewable  discre- 
tion is  thereby  lodged  in  the  board,  and  the  citizen  is  precluded  in 
a  suit  for  the  penalty  from  contesting  the  reasonableness  of  an  or- 
der made,  the  board  is  vested  with  a  power  of  the  most  arbitrary 
description,  liable  to  great  abuse — a  power  which,  though  in  terms 
vested  in  the  board  of  commissioners,  is,  sometimes  at  least,  as  the 
evidence  in  this  case  shows,  in  fact  wielded  by  the  subordinate  ap- 
pointees in  the  name  of  the  department.  It  would  have  been  com- 
petent for  the  Legislature  to  have  enacted  a  general  regulation  pro- 
hibiting the  piling  of  boxes   or   masses  of   combustible   material    in 


Ch.  9)      JURISDICTION,  CON-CLUSIVENESS,  AND  JUDICIAL   CONTROL.         5-47 

yards  or  open  spaces  in  the  populous  and  defined  districts  within  a 
city,  and  such  an  enactment  every  citizen  would  be  bound  to  obey ; 
and,  where  sued  for  a  penalty,  it  would  be  no  defense  to  a  party  who 
had  violated  the  law  to  show  that  in  his  particular  case,  owing  to 
exceptional  circumstances,  the  regulation  was  unnecessary  or  unrea- 
sonable. 

The  will  of  the  Legislature  would  stand  as  the  reason  for  the  rule, 
and,  being  general,  no  one,  however  situated,  could  escape  its  obli- 
gation, unless,  indeed,  he  could  establish  that,  passing  beyond  the 
police  power,  it  involved  some  right  of  person  or  property  protected 
by  the  Constitution.  In  other  words,  where  the  Legislature,  in  the 
exercise  of  the  police  power,  enacts  a  regulation  defining  the  duty  of 
citizens,  either  in  respect  to  their  personal  conduct  or  the  use  of  their 
property,  the  reasonableness  of  the  thing  enjoined  or  prohibited  is 
not  an  open  question,  because  the  supreme  legislative  power  has  de- 
termined it  by  enacting  the  rule.  See  Dill.  Mun.  Corp.  §  328,  and 
cases  cited.  But  where  the  Legislature,  as  in  the  present  case,  enacts 
no  general  rule  of  conduct,  but  invests  a  subordinate  board  with  the 
power  to  investigate  and  determine  the  fact  wdiether,  in  any  special 
case,  any  use  is  made  of  property  for  purposes  of  storage,  dangerous 
on  account  of  its  liability  to  originate  or  extend  a  conflagration,  not 
prescribing  the  uses  which  it  permits  or  disallows,  then  we  are  of 
opinion  that  in  such  cases  the  reasonableness  of  the  determination 
of  the  board,  or  of  the  order  prohibiting  a  particular  use  in  accord- 
ance with  such  determination,  is  open  to  contestation  by  the  party 
affected  thereby,  and  that  he  is  entitled  when  sued  for  a  disobedience 
of  the  order,  to  show  that  it  was  unreasonable,  unnecessary,  and  op- 
pressive. *  *  *  It  was  not  necessary  in  this  case  that  the  defend- 
ant should  have  been  notified  (as  he  was  not)  of  the  investigation  made 
of  his  premises  by  the  appointees  of  the  fire  commissioners,  or  that 
he  should  have  been  afforded  an  opportunity  to  be  heard  before  the 
order  was  made.  Health  Department  of  City  of  New  York  v.  Rector, 
etc.,  of  Trinity  Church,  145  N.  Y.  32,  39  N.  E.  833,  27  L.  R.  A. 
710,  45  Am.  St.  Rep.  579.  But  we  think  he  was  entitled  to  contest, 
in  the  action  for  the  penalty,  the  reasonableness  of  the  order  made 
and  the  facts  upon  which  it  proceeded.  People  v.  Board'  of  Health 
of  City  of  Yonkers,  140  N.  Y.  1,  35  N.  E.  320,  23  L.  R.  A.  481,  37 
Am.  St.  Rep.  522 ;  Health  Department  of  City  of  New  York  v.  Rec- 
tor, etc.,  of  Trinity  Church,  supra;  City  of  Salem  v.  Eastern  R.  Co., 
98  Mass.  431,  96  Am.  Dec.  650. 

For  the  denial  of  this  right,  we  think  the  judgment  should  be 
affirmed.     All  concur. 

Judgment  affirmed.^ ^ 

11  See,  also,  Chatfiekl  v.  Xew  Haven    (C.  C.)    110  Fed.  788   (1901). 

"Whether  or  not  the  Secretary  of  the  Treasury  failed  to  carry  into  ef- 
fect the  expressed  purpose  of  Congress,  and  established  standards  which 
operated  to  exclude  teas  which  would  have  been  entitled  to  admission  had 


)48  RELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part    3 


SECTION  70.— MILITARY  POWER 


MARTIN  V.  MOTT. 

(Supi-eine  Court  of  United  States,   1S27.     12  Wheat.  19,  G  L.  Ed.  .").'',7.) 

Error  to  the  Court  for  the  Trial  of  Impeachments  and  Correc- 
tion of  Errors  of  the  State  of  New  York. 

Mv.  Justice  Story  dehvered  the  opinion  of  the  court.^- 

This  is  a  writ  of  error  to  the  judgment  of  the  Court  for  the  Trial 
of  Impeachments  and  the  Correction  of  Errors  of  the  State  of  New 
York,  being  the  highest  court  of  that  state,  and  is  brought  here  in 
virtue  of  the  twenty-fifth  section  of  the  judiciary  act  of  1789,  c.  20. 
The  original  action  was  a  replevin  for  certain  goods  and  chattels, 
to  which  the  original  defendant  put  in  an  avowry,  and  to  that  avow- 
ry there  was  a  demurrer,  assigning  nineteen  distinct  and  special  causes 
of  demurrer.  Upon  a  joinder  in  demurrer,  the  Supreme  Court  of 
the  state  gave  judgment  against  the  avowant;  and  that  judgment 
was  affirmed  by  the  high  court  to  which  the  present  writ  of  error  is 
addressed. 

The  avowry,  in  substance,  asserts  a  justification  of  the  taking  of  ^ 
the  goods  and  chattels  to  satisfy  a  fine  and  forfeiture  imposed  upon  1 
the  original  plaintiff  by  a  court-martial,  for  a  failure  to  enter  the  1 
service  of  the  United  States  as  a  militiaman,  when  thereto  required 


propyl"  standards  been  adopted,  is  a  question  v,-e  are  not  called  upon  to  con- 
sider. The  sufficiency  of  the  standards  adopted  by  the  Secretary  of  the 
Treasui-y  was  committed  to  his  judgment,  to  be  honestly  exercised,  and  if 
that  were  important  there  is  no  assertion  here  of  bad  faith  or  malice  on 
the  part  of  that  officer  in  fixing  the  standards,  or  on  the  part  of  the  de- 
fendant in  the  performance  of  the  duties  resting  on  him."  Buttfield  v. 
Stranahan,  192  U.  S.  470,  49G,  497,  24  Sup.  Ct.  349,  355,  48  L.  Ed.  525  (1904). 

Other  cases  in  this  collection  illustrating  the  appeal  to  the  courts  against 
administrative  action  in  the  matter  of  public  health  and  safety  or  order: 
Lowe  V.  Conroy,  120  Wis.  151.  97  N.  W.  942.  CO  L.  R.  A.  907,  102  Am.  St. 
Rep.  983  (1904);  Raymond  v.  Fish,  51  Conn.  80,  50  Am.  Rep.  3  (1883); 
Craig  V.  Charleston,  180  111.  154,  54  N.  E.  184  (1899);  Chicago  v.  Chic. 
City  R.  Co.,  222  111.  560,  78  N.  E.  890  (lOOG) ;  Dobbins  v.  Los  Angeles,  105 
U.  S.  223,  25  Sup.  Ct.  18,  49  L.  Ed.  169  (1904)  ;  Meeker  v.  Van  Rensselaer, 
15  Wend.  (N.  Y.)  397  (1836);  Waye  v.  Thompson,  L.  R.  15  Q.  B.  D.  342 
(1885);  Hutton  v.  Camden,  39  N.  J.  Law,  122,  23  Am.  Rep.  203  (187G)  ; 
Metropolitan  Board  of  Health  v.  lleister,  37  N.  Y.  661  (1868);  People  v. 
Board  of  Health  of  Yonkers,  140  N.  Y.  1,  35  N.  E.  320,  23  L.  R.  A.  481,  37 
Am.  St.  Rep.  522  (1893);  Hartman  v.  Wilmington,  1  Mattel  (Del.)  215, 
41  Atl.  74  (1894)  ;  Health  Dept.  v.  Trinity  Church.  145  N.  Y.  32,  39  N.  E. 
833,  27  L.  R.  A.  710,  45  Am.  St.  Rep.  579  (1895);    Salem  v.  Eastern  R.  Co., 

12  Only  a  portion  of  the  opinion  of  Story,  J.,  is  printed. 


Ch.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL  CONTROL.         549 

by  the  President  of  the  United  States,  in  pursuance  of  the  act  of 
the  28th  of  February,  1T95,  c.  101.  It  is  argued  that  this  avowry 
is  defective,  both  in  substance  and  form;  and  it  will  be  our  busi- 
ness to  discuss  the  most  material  of  these  objections;  and  as  to 
others,  of  which  no  particular  notice  is  taken,  it  is  to  be  understood 
that  the  court  are  of  opinion  that  they  are  either  unfounded  in  fact 
or  in  law,  and  do  not  require  any  separate  examination. 

For  the  more  clear  and  exact  consideration  of  the  subject,  it  may 
be  necessary  to  refer  to  the  Constitution  of  the  United  States,  and 
some  of  the  provisions  of  the  act  of  1795.  The  Constitution  declares 
that  Congress  shall  have  power  "to  provide  for  calling  forth  the 
militia,  to  execute  the  laws  of  the  Union,  suppress  insurrections,  and 
repel  invasions,''  and  also  "to  provide  for  organizing,  arming,  and 
disciplining  the  militia,  and  for  governing  such  part  of  them  as 
may  be  employed  in  the  service  of  the  United  States."  In  pursuance 
of  this  authority,  the  act  of  1795  has  provided  "that  whenever  the 
United  States  shall  be  invaded,  or  be  in  imminent  danger  of  invasion 
from  any  foreign  nation  or  Indian  tribe,  it  shall  be  lawful  for  the 
President  of  the  United  States  to  call  forth  such  number  of  the  mili- 
tia of  the  state  or  states  most  convenient  to  the  place  of  danger, 
or  scene  of  action,  as  he  may  judge  necessary  to  repel  such  invasion, 
and  to  issue  his  order  for  that  purpose  to  such  officer  or  officers  of 
the  militia  as  he  shall  think  proper."  And  like  provisions  are  made 
for  the  other  .cases  stated  in  the  Constitution.  It  has  not  been  de- 
nied here  that  the  act  of  1795  is  within  the  constitutional  authority 
of  Congress,  or  that  Congress  may  not  lawfully  provide  for  cases 
of  imminent  danger  of  invasion,  as  well  as  for  cases  where  an  inva- 


9S  Mass.  431,  96  Am.  Dec.  650  (18(38)  ;  Reynolds  v.  Schultz,  27  N.  Y.  Super. 
•2S2  (1867);  King  v.  Davenport,  98  111.  305,  38  Am.  Rep.  89  (1881);  North 
American  Cold  Storage  Co.  v.  Chicago,  211  U.  S.  306.  29  Sup.  Ct.  101,  .53  L 
Ed.  195  (1908);  Wilcox  v.  Ileming,  ,58  Wis.  144.  15  N.  W.  435,  46  Am.  Rep. 
G25   (1883)  ;    Queen  v.  Wood,  5  El.  &  Bl.  49   (1855). 

Other  cases  illustrating  the  appeal  to  the  courts  against  administrative 
action  in  the  matter  of  refusal  or  revocation  of  licenses :  Bassett  v.  Gods- 
ohall,  3  Wilson,  121  (1770);  Downer  v.  T^'nt,  6  Cal.  94,  65  Am.  Dee.  489 
(1856)  ;  Dolan's  Appeal,  108  Pa.  564  (1SS5)  ;  Thompson  v.  Koch,  98  Kv. 
400,  33  S.  W.  96  (1895);  Hopson's  Appeal,  65  Conn.  140,  31  Atl.  531  (18941; 
State  V.  District  Court,  19  Mont.  501,  48  Pac.  1104  (1897)  ;  Gage  v.  Censors. 
63  N.  H.  92,  56  Am.  Rep.  492  (18^);  Com.  v.  Kinslev.  133  Mass.  57S 
(1882)  ;  Martin  v.  State,  23  Neb.  371,  36  N.  W.  554  (1888);  King  v.  Ven- 
ables,  2  Ld.  Raym.  1405  (1725)  ;  People  v.  McCoy,  125  111.  289,  17  N.  E. 
786  (1888);  People  v.  Department  of  Health.  180  N.  Y.  187.  82  N.  E.  187. 
13  L.  R.  A.  (N.  S.)  894  (1907);  State  v.  Lamos,  26  Me.  258  (1846);  T^. 
S.  V.  Douglass,  19  D.  C.  99  (1890);  Dodd  v.  Francisco,  68  N.  J.  Law,  490. 
53  Atl.  219  (1902);  People  v.  Board  of  Commissioners,  59  N.  Y.  92  (1874); 
Lillienfeld  v.  Commonwealth,  92  Va.  818,  23  S.  E.  882  (1896)  ;  Baldwin  v. 
Smith,  82  111.  162  (1876);  State  v.  Justices,  15  Ga.  408  (1854);  People  v. 
State  Board  Dent<al  Examiners,  110  111.  180  (1884);  111.  State  Board  Den- 
tal Exam.  v.  People.  123  111.  227.  13  N.  E.  201  (1887) ;  State  v.  Chittenden.  112 
Wis.  569.  88  N.  W.  587  (1902) ;  In  re  Sparrow.  138  Pa.  116.  20  Atl.  711  (1890) ; 
Gross'  License,  161  Pa.  349,  29  Atl.  25  (18M)  ;  Harrison  v.  People.  222 
111.  150,  78  N.  E.  52  (1906)  ;    Devin  v.  Belt,  70  Md.  352,  17  Atl.  375  (1889). 


550  IMOLIKF   AGAIXST   ADMINISTRATIVE   ACTION.  (Part    2 

sion  has  actually  taken  place.  In  our  opinion  there  is  no  ground 
for  a  doubt  on  this  point,  even  if  it  had  been  relied  on,  for  the  power 
to  provide  for  repelling  invasions  includes  the  power  to  provide  against 
the  attempt  and  danger  of  invasion,  as  the  necessary  and  proper 
means  to  effectuate  the  object.  One  of  the  best  means  to  repel  in- 
vasion is  to  provide  the  requisite  force  for  action  before  the  invader 
himself  has  reached  the  soil. 

The  power  thus  confided  by  Congress  to  the  President  is,  doubt- 
less, of  a  very  high  and  delicate  nature.  A  free  people  are  naturally 
jealous  of  the  exercise  of  military  power;  and  the  power  to  call 
the  militia  into  actual  service  is  certainly  felt  to  be  one  of  no  ordinary 
magnitude.  But  it  is  not  a  power  which  can  be  executed  without  a 
correspondent  responsibility.  It  is,  in  its  terms,  a  limited  power, 
confined  to  cases  of  actual  invasion,  or  of  imminent  danger  of  in- 
vasion. If  it  be  a  limited  power,  the  question  arises,  by  whom  is 
the  exigency  to  be  judged  of  and  decided?  'Is  the  President  the 
sole  and  exclusive  judge  whether  the  exigency  has  arisen,  or  is  it 
to  be  considered  as  an  open  question,  upon  which  every  officer  to 
whom  the  orders  of  the  President  are  addressed  may  decide  for  him- 
self, and  equally  open  to  be  contested  by  every  militiaman  who  shall 
refuse  to  obey  the  orders  of  the  President?  '  We  are  all  of  opinion 
that  the  authority  to  decide  whether  the  exigency  has  arisen  belongs 
exclusively  to  the  President,  and  that  his  decision  is  conclusive  up- 
on all  other  persons.  We  think  that  this  construction  necessarily 
results  from  the  nature  of  the  power  itself,  and  from  the  manifest 
object  contemplated  by- the  act  of  Congress.  The  power  itself  is 
to  be  exercised  upon  sudden  emergencies,  upon  great  occasions  of 
state,  and  under  circumstances  which  may  be  vital  to  the  existence  of 
the  Union,  A  prompt  and  unhesitating  obedience  to  orders  is  in- 
dispensable to  the  complete  attainment  of  the  object.  The  service 
is  a  military  service,  and  the  command  of  a  military  nature ;  and  in 
such  cases  every  delay,  and  every  obstacle  to  an  efficient  and  imme- 
diate compliance,  necessarily  tend  to  jeopard  the  public  interests. 
I  While  subordinate  officers  or  soldiers  are  pausing  to  consider  whether 
they  ought  to  obey,  or  are  scrupulously  weighing  the  evidence  of  the 
facts  upon  which  the  commander  in  chief  exercises  the  right  to  de- 
mand their  services,  the  hostile  enterprise  may  be  accomplished  with- 
out the  means  of  resistance.  If  "the  power  of  regulating  the  militia, 
and  of  commanding  its  services  in  times  of  insurrection  and  invasion, 
are  (as  it  has  been  emphatically  said  they  are)  natural  incidents  to 
the  duties  of  superintending  the  common  defense,  and  of  watching 
over  the  internal  peace  of  the  confederacy,"  these  powers  must  be 
so  construed  as  to  the  modes  of  their  exercise  as  not  to  defeat  the 
great  end  in  view.  If  a  superior  officer  has  a  right  to  contest  the 
orders  of  the  President  upon  his  own  doubts  as  to  the  exigency  hav- 
ing arisen,  it  must  be  equally  the  right  of  every  inferior  officer  and 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND   JUDICIAL   CONTROL.  551 

soldier ;  and  any  act  done  by  any  person  in  furtherance  of  such 
orders  would  subject  him  to  responsibility  in  a  civil  suit,  in  v/hich 
his  defense  must  finally  rest  upon  his  ability  to  establish  the  facts 
by  competent  proofs.  Such  a  course  would  be  subversive  of  all 
discipline,  and  expose  the  best-disposed  officers  to  the  chances  of 
ruinous  litigation.  Besides,  in  many  instances,  the  evidence  upon 
which  the  President  might  decide  that  there  is  imminent  danger  of 
invasion  might  be  of  a  nature  not  constituting  strict  technical  proof, 
or  the  disclosure  of  the  evidence  might  reveal  important  secrets  of 
state,  which  the  public  interest,  and  even  safety,  might  imperiously 
demand  to  be  kept  in  concealment. 

If  we  look  at  the  language  of  the  act  of  1795,  every  conclusion 
drawn  from  the  nature  of  the  power  itself  is  strongly  fortified.  The 
word's  are,  "whenever  the  United  States  shall  be  invaded,  or  be  in 
imminent  danger  of  invasion,  etc.,  it  shall  be  lawful  for  the  Presi- 
dent, etc.,  to  call  forth  such  number  of  the  militia,  etc.,  as  he  may 
judge  necessary  to  repel  such  invasion."  jThe  power  itself  is  con- 
fided to  the  Executive  of  the  Union,  tO'  him  who  is,  by  the  Constitu- 
tion, "the  commander  in  chief  of  the  militia,  when  called  into  the 
actual  service  of  the  United  States,"  whose  duty  it  is  to  "take  care 
that  the  laws  be  faithfully  executed,"  and  whose  responsibility  for 
an  honest  discharge  of  his  official  obligations  is  secured  by  the  highest 
sanctions./  He  is  necessarily  constituted  the  judge  of  the  existence 
of  the  exigency  in  the  first  instance,  and  is  bound  to  act  according 
to  his  belief  of  the  facts.  \lf  he  does  so  act,  and  decides  to  call  forth 
the  militia,  his  orders  for  this  purpose  are  in  strict  conformity  with 
the  provisions  of  the  law;  and  it  would  seem  to  follow  as  a  nec- 
essary consequence  that  every  act  done  by  a^  subordinate  officer,  in 
obedience  to  such  orders,  is  equally  justifiable.)  The  law  contemplates 
that,  under  such  circumstances,  orders  shall  be  given  to  carry  the 
power  into  effect;  and  it  cannot  therefore  be  a  correct  inference 
that  any  other  person  has  a  just  right  to  disobey  them.  The  law 
does  not  provide  for  any  appeal  from  the  judgment  of  the  President, 
or  for  any  right  in,,  subordinate  officers  to  review  his  decision,  and 
in  effect  defeat  it.  (Whenever  a  statute  gives  a  discretionary  power 
to  any  person,  to  be  exercised  by  him  upon  his  own  opinion  of  cer- 
tain facts,  it  is  a  sound  rule  of  construction  that  the  statute  consti- 
tutes him  the  sole  and  exclusive  judge  of  the  existence  of  those  facts. ^ 
And,  in  the  present  case,  we  are  all  of  opinion  that  such  is  the 
true  construction  of  the  act  of  1795.  It  is  no  answer  that  such  a 
power  may  be  abused,  for  there  is  no  power  which  is  not  susceptible 
of  abuse.  The  remedy  for  this,  as  well  as  for  all  other  official  mis- 
conduct, if  it  should  occur,  is  to  be  found  in  the  Constitution  itself. 
In  a  free  government  the  danger  must  be  remote,  since,  in  addition  to 
the  high  qualities  which  the  Executive  must  be  presumed  to  possess, 
of   public   virtue,   and   honest   devotion   to    the   public    interests,   the 


552  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

frequency  of  elections,  and  the  watchfulness  of  the  representatives 
of  the  nation,  carry  with  them  all  the  checks  which  can  be  useful 
to  guard  against  usurpation  or   wanton   tyranny.     *     *     *  ^^ 

13 ''The  first  and  second  objections  to  the  pleas  are  wholly  untenable.  It 
is  not  necessary  to  allege  that  a  case  had  occurred  which  gave  authoi-ity 
to  the  President  of  the  United  States  to  call  forth  the  militia,  under  the 
act  of  the  28th  of  February,  1795.  That  act,  after  enumerating  the  cases, 
on  the  occurrence  of  which  the  militia  may  be  called  into  the  public  serv- 
ice of  the  United  States,  vests  in  the  President  a  high  discretionary  power. 
He.  and  he  alone,  is  made  the  judge,  as  well  of  the  happening  of  the  events 
on  which  the  militia  may  be  called  forth,  as  of  the  number,  time  and  des- 
tination of  that  species  of  force.  In  every  case  in  which  the  President  acts 
under  that  law,  he  acts  upon  his  responsibility  under  the  Constitution.  If 
it  was  necessary  to  the  validity  of  these  pleas  to  state,  either  that  the 
United  States  were  invaded,  or  in  imminent  danger  of  invasion,  or  that  the 
laws  of  the  United  States  were  opposed,  or  the  execution  thereof  obstructed, 
the  matter  thus  stated  would  be  issual)le.  and  the  plaintiff  might,  in  his 
replication,  take  issue  on  them,  and  o])lige  the  defendant  to  prove  the  oc- 
currence of  a  case  specified  in  the  act ;  and  thus  every  subordinate  officer, 
who  should  be  called  into  service,  would  be  put  to  the  necessity,  when  he 
was  sued  for  any  act  of  discipline  upon  the  privates,  to  prove  to  a  jury  that 
the  President  had  acted  correctly  in  making  his  requisitions,  and  if  he 
failed  in  this  proof  it  would  subject  him  to  damages  for  an  act  otherwise 
lawful.  To  countenance  such  a  construction  of  the  act  would  be  monstrous. 
Every  trial  would  either  subject  all  the  archives  of  state  to  an  examina- 
tion before  the  court  and  jury,  or  the  defendant  would  inevitably  be  found 
guilty.  No  man  would  dare  to  obey  the  orders,  either  of  the  President,  or  of 
his  superior  officer,  lest,  peradventure,  the  President  had  either  abused  his  au- 
thority, or  misjudged  in  i-elation  to  the  occurrence  of  the  fact  which  au- 
thorized him  to  call  forth  the  militia.  It  is  a  general  and  sound  principle 
that  whenever  the  law  vests  any  person  with  a  power  to  do  an  act,  and  con- 
stitutes him  a  judge  of  the  evidence  on  which  the  act  may  be  done,  and. 
at  the  same  time,  contejiiplates  that  the  act  is  to  be  carried  into  effect 
through  the  instrumentality  of  agents,  the  person  thns  clothed  with  powei- 
is  invested  with  discretion,  and  is,  quoad  hoc,  a  judge.  His  mandates  to 
his  legal  agents,  on  his  declaring  the  event  to  have  happened,  will  be  a 
protection  to  those  agents;  and  it  is  not  their  duty  or  business  to  investi- 
gate the  facts  thus  referred  to  their  superior,  and  to  rejudge  his  determina- 
tion. In  a  military  point  of  view,  the  contrary  doctrine  would  be  subver- 
sive of  all  discipline;  and,  as  it  regards  the  safety  and  security  of  the  Unit- 
ed States  and  its  citizens,  the  consequences  would  be  deplorable  and  fatal. 
It  was  not  necessary,  therefore,  to  set  forth  the  occurrence  of  these  events 
in  the  pleas  as  a  justification  of  the  defendant's  conduct,  because  they  were 
not,  and  could  not,  be  matter  of  trial."  Vanderheyden  v.  Young,  11  Johns. 
(N.  Y.)    150,  157    (1814). 

Compare  Wise  v.  Withers,  3  Cranch,  331,  2  L.  Ed.  457  (1805)— distress  for 
nonpayment  of  militia  fine:  action  of  trespass  against  the  collector — Marshall, 
C.  J. :  "The  court  must  *  *  *  declare  that  a  justice  of  the  peace,  with- 
in the  District  of  Columbia,  is  exempt  from  the  performance  of  militia  duty. 
It  follows,  from  this  opinion,  that  a  court-martial  has  no  jurisdiction  over 
a  justice  of  the  peace,  as  a  militiaman;  he  could  never  be  legally  enrolled; 
and  it  is  a  principle  that  a  decision  of  such  a  tribunal,  in  a  case  clearly  with- 
out its  jurisdiction,  cannot  protect  the  officer  who  executes  it.  The  court 
and  the  officer  are  all  trespassers."  Also  Little  v.  Barreme,  2  Cranch,  170, 
2  L.  Ed.  243  (1804),  ante,  p.  332. 


Ch.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL   CONTROL.         553 


In  re  BOYLE. 

(Supreme  Court  of  Idaho,  1890.     G  Idaho,  609,  57  Tac.  TOG,  45  L.  R.  A. 
832,   90  Am.   St.   Rep.   286.) 

Application  of  William  Boyle  for  writ  of  habeas  corpus.     Denied. 

Huston,  C.  J.  This  is  an  application  for  a  writ  of  habeas  corpus. 
To  the  petition  a  general  demurrer  is  filed.  The  only  question  pre- 
sented for  our  determination  is,  does  the  petition  state  facts  entitling 
the  petitioner  to  the  writ?  The  petition  alleges  the  illegal  detention 
of  the  petitioner,  and  sets  forth  the  alleged  cause  of,  and  authority 
for,  such  detention ;  and  it  is  upon  the  alleged  illegality  or  want  of 
authority  therefor  that  petitioner  bases  his  right  to  the  writ.  As  to 
the  facts  set  up  in  the  petition,  so  far  as  not  contradictory  or  convict- 
ing, for  the  purposes  of  this  decision,  in  so  far  as  they  are  assumed 
to  be  true,  do  they  constitute  sufficient  ground  for  the  issuance  of 
the  writ  ?     It  appears  from  the  petition : 

That  on  the  4th  day  of  May,  1899,  the  Governor  of  the  state  of 
Idaho  issued  the  following  proclamation : 

"State  of   Idaho,  Executive  Office. 

"Whereas,  it  appearing  to  my  satisfaction  that  the  execution  of 
process  is  frustrated  and  defied  in  Shoshone  county,  state  of  Idaho, 
by  bodies  of  men  and  others,  and  that  combinations  of  armed  men 
to  resist  the  execution  of  processes  and  to  commit  deeds  of  violence 
exist  in  said  county  of  Shoshone;  and  whereas,  the  civil  authorities 
of  said  county  of  Shoshone  do  not  appear  to  be  able  to  control  such 
bodies  of  men,  or  prevent  the  destruction  of  property  and  other  acts 
of  violence ;  and  whereas,  on  Saturday,  the  29th  day  of  April,  1899, 
at  or  near  the  town  of  Wardner  Junction,  in  said  county  of  Shoshone, 
state  of  Idaho,  an  armed  mob  did  then  and  there  wantonly  destroy 
property  of  great  value,  with  attendant  loss  of  life;  and  whereas, 
said  destruction  of  property,  with  attendant  loss  of  life,  by  mob  vio- 
lence, as  above  set  forth,  is  but  one  and  a  repetition  of  a  series  of 
similar  outrages  covering  a  period  of  six  years  or  more  just  passed, 
the  perpetrators  of  said  outrages  seeming  to  enjoy  immunity  from 
arrest  and  punishment  through  subserviency  of  peace  officers  of  said 
county  of  Shoshone,  or  through  fear  on  the  part  of  said  officers  to 
such  bodies  of  lawless  and  armed  men;'  and  whereas,  I  have  reason 
to  believe  that  similar  outrages  may  occur  at  any  time,  and  believing 
the  civil  authorities  of  said  county  of  Shoshone  are  entirely  unable  to 
preserve  order  and  protect  property :  Now,  therefore,  I,  Frank  Steu- 
nenberg.  Governor  of  the  state  of  Idaho,  by  virtue  of  authority  in  me 
vested,  do  hereby  proclaim  and  declare  the  said  county  of  Shoshone, 
in  the  state  of  Idaho,  to  be  in  a  state  of  insurrection  and  rebellion.  In 
testimony  whereof,  I  have  hereunto  set  my  hand  and  caused  to  be 
affixed  the  great  seal  of  the  state.  Done  at  the  city  of  Boise,  the  capi- 
tal of  the  state  of  Idaho,  this  4th  day  of  May,  A.  D.  1899,  and  of  the 


554  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    3 

independence  of  the  United  States  of  America,  the  one  hundred  and 
twenty-third.  Frank  Steunenberg. 

"By  the  Governor:    M.  Patrie,  Secretary  of  State." 

That  thereafter,  upon  the  call  of  the  Governor,  a  military  force  was 
sent  into  said  Shoshone  county  by  the  President  of  the  United  States, 
which  proceeded  at  once  to  secure  the  arrest  of  the  parties  engaged 
in  and  who  committed  the  outrages  of  the  29th  of  April  for  the  pur- 
pose of  bringing  such  parties  before  the  proper  tribunal  for  trial. 

Among  the  parties  who  were  arrested  as  being  implicated  in  the 
murders,  and  other  crimes  resulting  from  the  insurrection,  riot,  or  re- 
bellion of  the  29th  of  April,  was  the  petitioner,  and  he  bases  his  claim 
to  be  discharged  from  such  arrest  upon  various  grounds :  "(1)  No 
insurrection,  riot,  or  rebellion  now  exists  in  Shoshone  county.  (2) 
The  Governor  has  no  authority  to  proclaim  martial  law,  or  suspend 
the  writ  of  habeas  corpus.  (3)  That  martial  law  does  not  exist  in 
Shoshone  county,  and  has  not  been  proclaimed  in  said  Shoshone  county 
by  any  one  having  authority  to  make  such  proclamation.  (4)  That  the 
little  disturbance  of  the  29th  of  April  is  over;  that  the  parties  impli- 
cated in  it,  after  having  destroyed  about  a  quarter  of  a  million  dollars 
of  property,  and  committed  several  murders,  have  retired  to  their 
homes ;  and  that,  in  recognition  of  the  inalienable  rights  of  the  citizen, 
they  ought  not  to  be  disturbed.  (5)  That  the  Governor  had  no  right 
or  authority  to  send  an  agent  or  representative  to  Shoshone  county  to 
consult  and  advise  with  the  military  officer  sent  there  by  the  federal 
government  to  assist  in  putting  down  the  insurrection  and  restoring 
order  in  said  county." 

Counsel  have  argued  ably  and  ingeniously  upon  the  question  as  to 
whether  the  authority  to  suspend  the  writ  of  habeas  corpus  rests  with 
the  legislative  or  executive  power  of  the  government;  but,  from  our 
view  of  this  case,  that  question  cuts  no  figure.  We  are  of  the  opin- 
ion that  whenever,  for  the  purpose  of  putting  down  insurrection  or  re- 
l)ellion,  the  exigencies  of  the  case  demanded  for  the  successful  accom- 
plishment of  this  end  in  view,  it  is  entirely  competent  for  the  executive 
or  for  the  military  officer  in  command,  if  there  be  such,  either  to  sus- 
l^end  the  writ  or  disregard  it,  if  issued.  The  statutes  of  this  state  make 
it  the  duty  of  the  Governor,  whenever  such  a  state  or  condition  exists 
as  the  proclamation  of  the  Governor  shows  does  and  has  existed  in 
Shoshone  county  for  the  past  six  or  seven  years,  to  proclaim  such  lo- 
cality in  a  state  of  insurrection,  and  to  call  in  the  aid  of  the  millitary 
of  the  state,  or  of  the  federal  government,  to  suppress  such  insurrec- 
tion, and  re-establish  permanently  the  ascendency  of  the  law.  It  would 
be  an  absurdity  to  say  that  the  action  of  the  executive,  under  such  cir- 
cumstances, may  be  negatived,  and  set  at  naught  by  the  judiciary,  or 
that  the  action  of  the  executive  may  be  interfered  with  or  impeded  by 
the  judiciary.  If  the  courts  are  to  be  made  a  sanctuary,  a  city  of 
refuge,  whereunto  malefactors  may  flee  for  protection  from  punish- 
ment justly  due  for  the  commission  of  crime,  they  will  soon  cease  to 


Cll.  9)       JURISDICTION,  CONCLUSIVENESS.  AND   JUDICIAL   CONTROL.  555 

be  that  palladium  of  the  rights  of  the  citizen  so  ably  described  by 
counsel. 

Section  7405  of  the  Revised  Statutes  provides:  "When  an  armed 
force  is  called  out  for  the  purpose  of  suppressing  an  unlawful  or 
riotous  assembly,  or  arresting  the  offenders  and  is  placed  under  the 
direction  of  any  civil  officer,  it  must  obey  the  orders  in  relation  there- 
to of  such  civil  officer." 

The  facts  set  forth  in  the  Governor's  proclamation  warranted  his 
action.  It  is  true  that  some  of  the  facts  recited  therein  are  negatived 
by  averment  in  the  petition,  which  would  seem  to  put  in  issue  the  truth 
or  falsity  of  those  recitals.  On  application  for  writ  of  habeas  cor- 
pus, the  truth  of  recitals  of  alleged  facts  in  a  proclamation  issued  by 
the  Governor  proclaiming  a  certain  county  to  be  in  a  state  of  insurrec- 
tion and  rebellion  will  not  be  inquired  into  or  reviewed.  The  action 
of  the  Governor  in  declaring  Shoshone  county  to  be  in  a  state  of  in- 
surrection and  rebellion,  and  his  action  in  calling  to  his  aid  the-  mili- 
tary forces  of  the  United  States  for  the  purpose  of  restoring  good 
order  and  the  supremacy  of  the  law,  has  the  effect  to  put  into  force, 
to  a  limited  extent,  martial  law  in  said  county.  Such  action  is  not 
in  violation  of  the  Constitution,  but  in  harmony  with  it,  being  neces- 
sary for  the  preservation  of  government.  In  such  case  the  govern- 
ment may,  like  an  individual  acting  in  self-defense,  take,  those  steps 
necessary  to  preserve  its  existence.  If  hundreds  of  men  can  arm  them- 
selves and  destroy  vast  properties,  and  kill  and  injure  citizens,  thus 
defeating  the  ends  of  government,  and  the  government  be  unable  to 
take  all  needful  and  necessary  steps  to  restore  law  and  maintain  order, 
the  state  will  then  be  impotent,  if  not  entirely  destroyed,  and  anarchy 
placed  in  its  stead. 

It  is  no  argument  to  say  that  the  executive  was  not  applied  to  by 
any  county  officer  of  Shoshone  county  to  proclaim  said  county  to  be 
in  a  state  of  insurrection,  and  for  this  reason  the  proclamation  was 
without  authority.  The  recitals  in  the  proclamation  show  the  existence 
of  one  of  two  conditions,  viz. :  That  the  county  officers  of  said  county, 
whose  duty  it  was  to  make  said  application,  were  either  in  league  with 
the  insurrectionists,  or  else,  through  fear  of  the  latter,  said  officers 
refrained  from  doing  their  duty.  Under  the  circumstances,  it  was 
the  duty  of  the  executive  to  act  without  any  application  from  any 
county  officer  of  Shoshone  county.  This  conclusion  is  based  upon 
what  we  deem  a  correct  construction  of  the  provisions  of  our  Constitu- 
tion and  statutes  in  force,  construed  in  pari  materia.  It  having  been 
demonstrated  to  the  satisfaction  of  the  Governor,  after  some  six  or 
seven  years'  experience,  that  the  execution  of  the  laws  in  Shoshone 
county,  through  the  ordinary  and  established  means  and  methods,  was 
rendered  practically  impossible,  it  became  his  duty  to  adopt  the  means 
prescribed  by  the  statute  for  establishing  in  said  county  the  supremacy 
of  the  law,  and  insure  the  punishment  of  those  by  whose  unlawful  and 
criminal  acts  such  a  condition  of  things  has  been  brought  about;   and 


556  KELIKF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

it  is  not  the  province  of  the  courts  to  hinder,  delay,  or  place  obstruc- 
tions in  the  path  of  duty  prescribed  by  law  for  the  executive,  but 
rather  to  render  to  him  all  the  aid  and  assistance  in  their  power  in 
his  efiforts  to  bring  about  the  consummation  most  devoutly  prayed 
for  by  every  good  and  law-abiding  citizen  in  the  state. 

The  various  questions  raised  by  counsel  have  been  considered  by 
the  court,  and  it  is  our  conclusion  that  the  petition  does  not  state  facts 
which  show  that  the  writ  demanded  ought  to  issue;  wherefore  the 
said  demurrer  has  been  sustained,  and  the  writ  denied. 

QuARi^KS  and  Suli^ivan,  J  J.,  concur.^* 


SECTION  71.— TAXATION  AND  REVENUE— JURISDIC- 
TIONAL PREREQUISITES 


McLEAN  V.  JEPIISON. 

(Court  of  Appeals  of  New  York,  1890.     12.3  N.   Y.   142.  25  N.  E.  409,  9 
L.  II.  A.  49.3.) 

RuGER,  C.  J.  This  was  an  application  to  the  Supreme  Court  by 
the  receiver  of  taxes  in  the  city  of  New  York,  under  section  857  of 
the  city  charter  (chapter  410,  Laws  1883),  for  a  warrant  to  enforce 
the  payment  of  a  tax  upon  personal  property  by  a  nonresident.  The 
section  authorizing  the  proceeding  reads  as  follows :  "In  case  of  the 
refusal  or  neglect  of  any  person  to  pay  any  tax  imposed  on  him  for 
personal  property,  if  there  be  no  goods  or  chattels  in  his  possession 
upon  which  the  same  may  be  levied  by  distress  and  sale  according 
to  law,  and  if  the  property  assessed  shall  exceed  the  sum  of  one  thou- 
sand dollars,  the  said  receiver,  if  he  has  reason  to  believe  that  the  per- 
son taxed  has  debts,  credits,  choses  in  action,  or  other  personal  prop- 
erty, not  taxed  elsewhere  in  this  state  and  upon  which  levy  cannot  be 
made  according  to  law,  may  thereupon,  in  his  discretion,  make  appli- 
cation within  one  year  to  the  court  of  common  pleas  of  the  county,  or 
the  Supreme  Court,  to  enforce  the  payment  of  such  tax." 

The  application  was  based  upon  a  petition  alleging  the  imposition 
of  the  tax  upon  the  defendant  in  the  year  1883,  as  a  nonresident 
doing  business  and  having  capital  invested  therein,  in  the  city  of  New 

1*  See,  also.  Com.  ex  rel.  Wadsworth  v.  Shortall,  20G  Pa.  1G5,  05  Atl.  952, 
G5  L.  R.  A.  193.  98  Am.  St.  Rep.  759  (1903). 

Other  cases  illustrating  the  appeal  to  the  courts  against  the  exercise  of 
militai-y  or  executive  power :  Mostyn  v.  Fabrigas,  Cowper,  161  (1774) ;  Little 
V.  Barreme,  2  Cranch,  170.  2  L.  Ed.  243  (1804) ;  Georgia  v.  Stanton,  6  Wall. 
50,  IS  L.  Ed.  721  (1867) ;  ISIississippi  v.  Johnson,  4  Wall.  475,  18  L.  Ed.  437 
aSG6). 


Ch.  9)       JURISDICTION,  COXCLUSIVEXESS,  AND   JUDICIxVL   CONTIIOL.  557 

York.  An  order  to  show  cause  why  the  relief  asked  should  not  be 
granted  was  issued  and  served  upon  the  defendant,  and,  upon  the  re- 
turn day  thereof,  he  appeared  and  showed  that  he  was  at  the  time  the 
alleg^ed  assessment  was  made,  and  for  a  long  time  previous  thereto 
had  been,  a  resident  of  the  state  of  New  Jersey,  and  had  never  trans- 
acted business  in  the  city  of  New  York,  except  as  the  agent  of  a  cor- 
poration organized  and  doing  business  in  the  state  of  New  Jersey 
as  a  manufacturer  of  carriages;  that  the  company  had  a  wareroom 
in  the  city  of  New  York  for  the  exhibition  and  sale  of  its  own  manu- 
factures ;  and  that  defendant  had  charge  of  such  wareroom  as  its 
agent.  These  facts  were  undisputed,  and  must  be  considered  as  con- 
clusively established  in  the  further  consideration  of  the  case. 

The  authority  of  the  assessors  to  make  the  assessment  in  question  is 
claimed  to  have  been  derived  from  section  1,  c.  37,  Laws  1855,  which 
reads  as  follows :  "All  persons  and  associations  doing  business  in  the 
state  of  New  York  as  merchants,  bankers,  or  otherwise,  either  as  prin- 
cipals or  partners,  whether  special  or  otherwise,  and  not  residents 
of  this  state,  shall  be  assessed  and  taxed  on  all  sums  invested  in  any 
manner  in  said  business  the  same  as  if  they  were  residents  of  this 
state,  and  said  taxes  shall  be  collected  from  the  property  of  the  firms, 
persons,  or  associations  to  which  they  severally  belong." 

This  statute  clearly  defines  the  limits  of  the  power  possessed  by  the 
assessment  officers,  and  their  jurisdiction  depends  upon  the  exist- 
ence of  the  facts  stated  in  the  statute.  To  authorize  an  assessment 
under  this  statute,  it  is  indispensable  that  the  person  assessed  shall, 
in  fact,  have  money  invested  in  a  business  carried  on  by  him  in  this 
state,  either  as  a  principal  or  partner.  Assessors  cannot  acquire  juris- 
diction to  make  such  assessments  by  determining  that  they  have  it, 
and  their  authority  to  act  must  always  depend  upon  the  existence  of 
the  jurisdictional  facts  described  in  the  statute.  The  facts  stated 
conclusively  show  that  the  defendant  was  not  doing  such  business  in 
the  city  of  New  York,  either  as  a  principal  or  a  partner,  and  that  he 
did  not  have  any  money  invested  in  the  business  there  carried  on. 
That  business  was  carried  on  by  the  corporation  of  which  the  defend- 
ant was  agent,  and  the  money  invested  in  it  was  the  property  of  that 
corporation.  The  court  below  conceded  that,  if  the  facts  stated  had 
been  known  to  the  tax  commissioners,  they  could  not  lawfully  have 
made  an  assessment  against  the  defendant;  but  it  was  claimed  that 
the  act  of  the  commissioners  in  making  it  was  judicial  and  could  not 
be  assailed  collaterally,  and  that  the  defendant  should  have  adopted 
some  means,  either  by  appearing  before  the  tax  commissioners  w^hen 
they  sat  to  review  assessments,  and  urged  his  nonliability  to  taxation, 
or,  by  certiorari  from  the  determination  of  the  assessors,  raised  the 
question  of  his  liability. 

There  is  no  prerogative  of  the  government  which  is  more  liable  to 
a^use  than  that  which  authorizes  it  to  seize  and  appropriate  the  prop- 
erty of  the  citizen  for  public  purposes,  and  none  which  is  regarded 


558  KELIEP   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

with  more  jealous  scrutiny  by  the  courts.  The  authority  of  its  officers 
to  exercise  the  powers  of  taxation  has  uniformly  been  carefully 
scrutinized  and  limited  to  the  express  warrant  of  the  statute,  and 
cannot  be  extended  by  implication  or  construction.  This  is  especially 
the  case  where  its  demands  may  be  enforced  by  fine  and  impris- 
onment, and  it  would  be  contrary  to  the  traditions  of  our  people,  as 
well  as  to  principles  of  justice  and  law,  to  permit  the  liberty  of  the 
citizen  to  be  jeopardized  by  a  strained  and  doubtful  construction  of  a 
statute.  The  defendant  has,  confessedly,  been  assessed  upon  prop- 
erty which  he  did  not  own,  and  is  now  threatened  with  imprisonment, 
unless  he  pays  the  illegal  exaction.  The  only  authority  the  tax  com- 
missioners had  to  assess  the  personal  property  of  a  nonresident  was 
in  the  event  that  he  employed  it  in  carrying-  on  a  business  in  this  state, 
as  principal  or  partner.  But  the  defendant  had  been  taxed  upon  an 
investment  which  he  never  made,  and  upon  a  business  carried  on  by 
other  parties.  This  has  been  done  upon  the  theory  not  that  he  had 
property  and  was  carrying  on  such  business,  but  because  he  was 
negligent  in  failing  to  examine  the  assessment  lists,  and,  by  omitting 
to  do  so  and  obtaining  a  correction  of  them,  has  been  rendered  liable 
to  the  payment  of  a  tax  on  property  which  he  did  not  own.  The 
property  assessed  could  not  have  been  taken  for  the  payment  of  this 
tax,  as  it  did  not  belong  to  the  person  against  whom  it  was  levied,  and 
the  strange  anomaly  is  presented  of  an  assessment  against  a  person 
for  property  which  he  did  not  own,  under  an  act  which  authorizes  an 
assessment  only  upon  his  property  invested  in  business,  and  in  respect 
to  property  which  could  not  be  taken  in  payment  for  the  tax,  although 
such  property  alone  is  pointed  out  by  the  act  as  the  fund  from  which 
the  tax  is  to  be  collected.  Upon  such  a  foundation  is  built  up  a  per- 
sonal claim  against  the  alleged  taxpayer,  which  is  sought  to  be  en- 
forced by  imprisonment.  The  ground  upon  which  it  is  claimed  to  be 
sustainable,  is  that  the  tax  commissioners  have  decided  that  he  was  a 
taxpayer,  and,  in  so  doing,  acted  judicially,  and  therefore  their  deter- 
mination cannot  be  attacked  collaterally. 

It  is  argued  that,  public  notice  by  publication  having  been  given 
that  the  assessment  rolls  of  New  York  City  had  been  completed  and 
would  be  open  for  inspection  and  review  at  a  certain  time  and  place 
in  that  city,  the  defendant,  having  failed  to  examine  them  and  to 
procure  a  correction  of  the  erroneous  assessment,  was  precluded  from 
questioning  the  validity  of  such  assessment  in  this  proceeding.  We 
are  of  the  opinion  that  the  defendant  was  under  no  obligation  to  ex- 
amine the  assessment  lists  of  the  city  of  New  York.  It  is  not 
claimed  that  the  notices  published  by  the  assessors  contained  any 
intimation  that  an  assessment  had  been  made  against  the  defendant, 
or  that  he  had  personal  notice,  in  any  other  fonn,  of  the  making  of 
such  assessment.  There  was  no  law  making  the  defendant  liable 
to  taxation  in  New  York,  and  no  foundation  for  a  claim  that  he 
knew,  or  had  any  reason  to  suppose,  that  an  assessment  had  been 


Cll.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL   CONTROL.         559 

made  against  him.  He  was  under  no  greater  obligation  to  examine 
the  assessment  Hsts  of  New  York  City  than  any  other  of  the  thou- 
sands of  citizens  of  other  states  who  visited  that  city  during  the  year 
1883.  A  person  subject  to  taxation  in  a  particular  place  may  well 
be  held  liable  for  an  erroneous  assessment  if  he  neglects  to  examine 
the  rolls  and  obtain  correction  of  errors  therein ;  but  a  nonresident, 
having  no  taxable  property  in  such  locality  and  no  just  reason  to  sup- 
pose he  has  been  taxed,  is  under  no  such  obligation.  He  may  safely  re- 
ly upon  his  immunity  from  taxation  in  any  place  where  he  does  not  re- 
side, and  is  not  compelled  to  anticipate  and  thwart  the  act  of  public 
officers  proceeding  without  authority  of  law  in  such  places.  The  pub- 
lished notices  of  the  completion  of  assessment  rolls,  required  by  the 
statute,  are  intended  for  the  information  of  taxpayers  within  the  ju- 
risdiction of  the  particular  assessment  officers,  and  can  have  no  oper- 
ation upon  nonresidents  of  such  locality  who  have  no  property  liable 
to  taxation  therein. 

We  think  the  authorities  are  clearly  adverse  to  the  decision  of  the 
court  below.  It  is  conceded  that  the  question  depends  upon  the  fact 
whether  the  assessors  had  jurisdiction  to  make  the  assessment.  If 
they  had  not,  then  the  assessment  is  confessedly  void.  Assessors  are 
ministerial  officers,  and  do  not  generally  act  judicially  in  the  perform- 
ance of  their  duties.  Having,  however,  acquired  jurisdiction  of  the 
person  and  subject-matter  liable  to  be  taxed,  certain  questions  may 
arise  which  are  necessarily  judicial  in  character,  and  in  respect  to 
such  questions  their  action  is  necessarily  final,  unless  their  determina- 
tions be  directly  assailed.  Instances  of  such  questions  are  the  fixing 
of  the  value  of  property  assessed,  and  determining  the  extent  of  a 
claim  to  exemption,  where  the  person  assessed  is  liable  to  be  taxed. 
Weaver  v.  Devendorf,  3  Denio,  118. 

The  authorities  in  this  state  seem  to  be  quite  uniform,  to  the  effect 
that  the  question  whether  persons  or  property  are  assessable  under 
the  statutes  is  a  jurisdictional  question,  and  is  always  open  to  inquiry 
when  the  authority  to  make  an  assessment  is  assailed. 

The  case  of  Dorn  v.  Backer,  61  N.  Y.  361,  cannot,  we  think,  on  prin- 
ciple, be  distinguished  from  this  case.  That  was  an  action  against 
the  assessor  to  recover  damages  for  wrongfully  assessing  the  plaintiff's 
farm,  in  the  town  of  Ava,  The  farm  lay  partly  in  Ava,  and  partly 
in  Boonville.  It  was  assessable  in  the  township  where  he  resided.  He 
had  formerly  occupied  a  house  upon  that  part  of  his  farm  lying  in 
the  town  of  Ava.  Subsequently,  he  removed  into  a  small  house  built 
on  the  land  in  Boonville,  and  had  apparently  resided  there  some  years. 
It  was  there  declared :  "It  may  be  said  now  to  be  settled  that  asses- 
sors cannot  acquire  jurisdiction  by  deciding  that  they  have  it.  Before 
assessing  the  plaintiff'  for  taxation  in  the  town  of  Ava,  it  was  es- 
sential that  he  should  be  a  resident  of  that  town,  and,  if  not,  they  had 
no  jurisdiction."  It  was  held  that  the  action  was  sustainable. 
In  Bank  v.  City  of  Elniira,  53  N.  Y.  49,  the  action  was  to  recover 


500  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

damages  for  the  conversion  of  plaintiff's  property.  The  defendant 
justified  under  an  allegation  that  the  property  was  taken  by  its  col- 
lector to  satisfy  a  tax  duly  imposed  upon  the  capital  of  the  bank  by 
the  assessors  of  the  city.  Under  the  law  (chapter  761,  Laws  1866) 
the  capital  of  a  bank  was  not  assessable.  The  late  Chief  Judge  Church, 
writing  the  opinion  of  the  court,  says :  "It  is  claimed  that  the  asses- 
sors had  jurisdiction  to  make  the  assessment;  that  their  act  was  ju- 
dicial, and,  although  erroneous,  is  conclusive  until  reversed  by  a  direct 
proceeding  instituted  for  that  purpose.  This  proposition  cannot  be 
predicated  of  this  case,  either  in  fact  or  in  law.  Some  of  the  duties  of 
assessors  are  judicial  in  their  nature,  and  as  to  them,  while  acting 
within  the  scope  of  their  authority,  they  are  protected  from  attack, 
collaterally,  to  the  same  extent  as  other  judicial  officers;  but  they  are 
subordinate  officers,  possessing  no  authority,  except  such  as  is  con- 
ferred upon  them  by  statute,  and  it  is  a  well-settled  and  salutary  rule 
that  such  officers  must  see  that  they  act  within  the  authority  committed 
to  them.  *  *  *  So,  when  their  right  to  act  depends  upon  the  ex- 
istence of  some  fact  which  they  erroneously  determine  to  exist,  their 
acts  are  void.  *  *  *  This  court  held,  in  15  N.  Y.  316,  that,  if  the 
assessors  erred  in  determining  whether  a  person  was  a  taxable  in- 
habitant of  a  town,  they  did  so  at  their  peril,  and  were  liable  to  an 
action  by  the  party  aggrieved.  This  was  upon  the  principle  that  the 
act,  although  judicial  in  its  nature  and  requiring  the  exercise  of 
judgment,  was  nevertheless  necessary  to  confer  jurisdiction,  which 
could  not  be  conferred  by  an  erroneous  decision." 

The  case  of  Mygatt  v.  Washburn,  15  N.  Y.  316,  referred  to,  was  an 
action  by  the  taxpayer  against  the  assessor  for  an  illegal  assessment. 
The  plaintiff  had  been  a  resident  of  the  town  of  Oxford  until  the  last 
of  May,  when  he  removed  to  the  county  of  Oswego.  The  time  for 
making  assessments  in  Oxford  covered  the  months  of  May  and  June 
and  the  plaintiff's  name  was  entered  on  the  assessment  lists  in  May. 
It  was  held  that  the  status  of  the  taxpayer  as  to  residence  did  not  be- 
come irrevocably  fixed  until  after  July  1st.  Judge  Denio  says:  "The 
plaintiff,  therefore,  was  not  subject  to  the  jurisdiction  of  the  assessors. 
In  placing  his  name  on  the  roll,  and  adding  thereto  an  amount  as  the 
value  of  his  personal  property,  they  acted  without  authority.  They 
are,  therefore,  responsible  to  the  plaintiff  for  the  damages  which  en- 
sued.   It  was  not,  in  the  view  of  the  law,  an  error  of  judgment." 

In  view  of  the  fact  that  the  authorities  on  this  point  are  all  uniform, 
we  will  only  refer  to  In  re  New  York  Catholic  Protectory,  77  N.  Y. 
342,  because  it  recognizes,  as  an  established  principle,  that  the  deter- 
mination by  assessors  that  a  person  or  his  property  are  taxable,  is 
jurisdictional,  and  that  an  error  made  by  them  in  such  determination 
against  the  taxpayer  is  fatal  to  the  validity  of  the  assessment.  Judge 
Rapallo,  writing  the  opinion  of  the  court,  says :  "By  the  act  amending 
their  charter  (section  3,  c.  647,  Laws  1866),  it  is  provided  that  'the 
real  and  personal  estate  belonging  to,  and  used  for  the  charitable  pur- 


Cll.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL  CONTROL.         561 

poses  of,  said  association  shall  be  exempt  from  taxation.'  That  the 
land  upon  which  the  tax  in  question  was  imposed  belonged  to  the  pe- 
titioners, and  was  used  for  such  charitable  purposes,  is  alleged  in  the 
petition,  and  not  controverted  in  any  manner.  The  assessors,  conse- 
quently, had  no  jurisdiction  to  assess  that  land;  and,  even  if  they  be 
deemed  to  have  determined  as  a  fact  that  the  land  was  not  so  used 
as  to  bring  it  within  the  exception,  their  determination  was  not  con- 
clusive, the  fact  being  one  upon  which  their  jurisdicton  depended.  If 
the  jurisdictional  fact  did  not  exist,  the  determination  of  the  assessors 
could  not  establish  jurisdiction  in  them." 

The  assessment  officers  in  this  case  had  authority  to  assess  the  prop- 
erty of  a  nonresident  doing  business  in  this  state  as  a  principal,  or  part- 
ner having  money  invested  in  the  business,  and  in  such  case  only. 
Their  authority  to  assess  depended  upon  the  fact  that  he  was  engaged 
in  business,  and  not  upon  appearances  which  might  be  deceptive  and 
uncertain.  The  defendant,  concededly,  was  not  a  principal  or  partner 
in  any  business  conducted  in  this  state,  and  had  no  money  invested  in 
such  business.  His  principal  might  have  been  engaged  in  such  business, 
and  might  have  been  liable  to  taxation ;  but  even  as  to  that  there  is 
some  question.  People  ex  rel.  Parker  Mills  v.  Commissioners  of  Taxes, 
23  N.  Y.  242.  But  the  defendant  was  not  only  not  liable  to  be  assessed, 
but  the  case  does  not  show  that  there  were  any  reasonable  grounds  for 
supposing  that  he  was  engaged  in  a  business  making  him  liable  to 
taxation.  He  was  a  nonresident,  and  did  not  own  the  property  as- 
sessed, and  did  not  appear  to  be  carrying^  on  business  in  any  capacity 
except  as  the  agent  of  a  responsible  principal  located  in  another  state. 

Without  discussing  other  questions  in  the  case,  which  might  possi- 
bly be  reviewed  upon  the  record,  we  are,  for  the  reasons  stated,  of  the 
opinion  that  the  orders  of  the  courts  below  should  be  reversed.  The 
orders  of  the  General  and  Special  Terms  should  be  reversed,  and  the 
application  of  the  petitioner  denied,  with  costs  in  all  courts.  All  con- 
cur.^ ^ 


DE  LIMA  V.  BIDWELL. 

(Supreme  Court  of  United  States,  1900.     182  U.  S.  1,  21  Sup.  Ct.  743. 
45  L.  Ed.  1041.) 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York  to  review  a  judgment  sustaining  a  demurrer 
in  an  action  removed  from  a  state  court  and  brought  against  the  col- 
lector of  the  port  of  New  York  to  recover  back  duties  on  goods  im- 
ported from  Porto  Rico. 

15  Compare  Easton  v.  Calendar,  11  Wend.  (N.  Y.)  90  (1&33),  ante,  p.  297. 
See,  also,  Rooke  v.  Withers,  5  Coke  Rep.  99b   (1598);    Nichols  v.  Walker, 
Cro.  Car.  394   (1G34)  ;    Terry  v.  Huntington,  Hardres,  480    (IGGS). 
Fe.Adm.Law — 36 


562  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    3 

Mr,  Justice  Brown  delivered  the  opinion  of  the  court. ^® 

This  case  raises  the  single  question  whether  territory  acquired  by 
the  United  States  by  cession  from  a  foreign  power  remains  a  "foreign 
country"  within  the  meaning  of  the  tariff  laws. 

1.  Did  the  question  of  jurisdiction  raised  by  the  demurrer  involve 
only  the  jurisdiction  of  the  Circuit  Court  as  a  federal  court,  we  should 
be  obliged  to  say  that  the  defendant  was  not  in  a  position  to  make  this 
claim,  since  the  case  was  removed  to  the  federal  court  upon  his  own 
petition.  It  is  no  infringement  upon  the  ancient  maxim  of  the  law 
that  consent  cannot  confer  jurisdiction,  to  hold  that,  where  a  party  has 
procured  the  removal  of  a  cause  from  a  state  court  upon  the  ground 
that  he  is  lawfully  entitled  to  a  trial  in  a  federal  court,  he  is  estopped  to 
deny  that  such  removal  was  lawful  if  the  federal  court  could  take  ju- 
risdiction of  the  case,  or  that  the  federal  court  did  not  have  the  same 
right  to  pass  upon  the  questions  at  issue  that  the  state  court  would 
have  had  if  the  cause  had  remained  there.  Defendant  neither  gains 
nor  loses  by  the  removal,  and  the  case  proceeds  as  if  no  such  removal 
had  taken  place.  Cowley  v.  Northern  P.  R.  Co.  159  U.  S.  569,  583, 
16  Sup.  Ct.  127,  40  L.  Ed.  263,  267;  Mansfield,  C.  &  L.  M.  R.  Co.  v. 
Swan,  111  U.  S.  379,  4  Sup.  Ct.  510,  28  L.  Ed.  462 ;  Mexican  Nat. 
R.  Co.  v.  Davidson,  157  U.  S.  201,  15  Sup.  Ct.  563,  39  L.  Ed.  672. 

This,  however,  is  more  a  matter  of  words  than  of  substance,  as  the 
defendant  unquestionably  has  the  right  to  show  that  the  state  court 
had  no  jurisdiction,  or  that  the  complaint  did  not  set  forth  facts  suffi- 
cient to  constitute  a  cause  of  action.  This  we  understand  to  be  the 
substance  of  the  defense  in  this  connection. 

By  Rev.  St.  §  2931  (U.  S.  Comp.  St  1901,  p.  1933),  it  was  enacted 
that  the  decision  of  the  collector  "as  to  the  rate  and  amount  of  duties" 
to  be  paid  upon  imported  merchandise  should  be  final  and  conclusive, 
unless  the  owner  or  agent  entered  a  protest  and  within  thirty  days  ap- 
pealed therefrom  to  the  Secretary  of  the  Treasury,  and,  further,  that 
the  decision  of  the  Secretary  should  be  final  and  conclusive,  unless  suit 
were  brought  within  ninety  days  after  the  decision  of  the  Secretary. 
By  Rev.  St.  §  3011  (U.  S.  Comp.  St.  1901,  p.  1985),  any  person  hav- 
ing made  payment  under  such  protest  was  given  the  right  to  bring  an 
action  at  law  and  recover  back  any  excess  of  duties  so  paid. 

The  law  stood  in  this  condition  until  June  10,  1890,  when  an  act 
known  as  the  customs  administrative  act  was  passed  (Act  June  10, 
1890,  c.  407,  26  Stat.  131  [U.  S.  Comp.  St.  1901,  p.  1886]),  by  which 
the  above  sections  (Rev.  St.  §§  2931,  3011)  were  repealed  and  new 
regulations  established,  by  which  an  appeal  was  given  from  the  de- 
cision of  the  collector  "as  to  the  rate  and  amount  of  duties  chargeable 
upon  imported  merchandise,"  if  such  duties  were  paid  under  protest, 
to  a  Board  of  General  Appraisers  whose  decision  should  be  final  and 
conclusive  (section  14)  "as  to  the  construction  of  the  law  and  the  facts 

16  Only  a  portion  of  the  opinion  of  Brown,  J.,  is  here  printed. 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL   CONTROL.  503 

respecting-  the  classification  of  such  merchandise  and  the  rate  of  duty 
imposed  thereon  under  such  classification,"  unless  within  thirty  days 
one  of  the  parties  applied  to  the  Circuit  Court  of  the  United  States 
for  a  review  of  the  questions  of  law  and  fact  involved  in  such  decision. 
Section  15.  It  was  further  provided  that  the  decision  of  such  court 
should  be  final,  unless  the  court  were  of  opinion  that  the  question  in- 
volved was  of  such  importance  as  to  require  a  review  by  this  court, 
which  was  given  power  to  affirm,  modify,  or  reverse  the  decision  of  the 
Circuit  Court. 

The  effect  of  the  customs  administrative  act  was  considered  by  this 
court  in  Re  Fassett,  148  U.  S.  -179,  12  Sup.  Ct.  295,  35  L.  Ed.  1087, 
in  which  we  held  that  the  decision  of  the  collector  that  a  yacht  was  an 
imported  article  might  be  reviewed  upon  a  libel  for  possession  filed 
by  the  owner,  notwithstanding  the  customs  administrative  act.  It  was 
held  that  the  review  of  the  decision  of  the  Board  of  General  Appraisers, 
provided  for  by  section  15  of  that  act,  was  limited  to  decisions  of  the 
board  "as  to  the  construction  of  the  law  and  the  facts  respecting  the 
classification"  of  imported  merchandise  "and  the  rate  of  duty  imposed 
thereon  under  such  classification,"  and  that  it  did  not  bring  up  for  re- 
view the  question  whether  an  article  be  imported  merchandise  or  not, 
nor,  under  section  15,  is  the  ascertainment  of  that  fact  such  a  decision 
as  is  provided  for. 

Said  Mr.  Justice  Blatchford:  "Nor  can  the  court  of  review  pass 
upon  any  cjuestion  which  the  collector  had  not  original  authority  to 
determine.  The  collector  had  no  authority  to  make  any  determination 
regarding  any  article  which  is  not  imported  merchandise;  and  if  the 
vessel  in  question  here  is  not  imported  merchandise,  the  court  of  re- 
view would  have  no  jurisdiction  to  determine  any  matter  regarding 
that  question,  and  could  not  determine  the  very  fact  which  is  in  issue 
under  the  libel  in  the  District  Court  on  which  the  rights  of  the  libelant 
depend.  Under  the  customs  administrative  act  the  libelant,  in  order  to 
have  the  benefit  of  proceedings  thereunder,  must  concede  that  the  ves- 
sel is  imported  merchandise,  which  is  the  very  question  put  in  conten- 
tion under  the  libel,  and  must  make  entry  of  her  as  imported  merchan- 
dise, with  an  invoice  and  a  consular  certificate  to  that  efifect."  It  was 
held  that  the  libel  was  properly  filed. 

The  question  involved  in  this  case  is  not  whether  the  sugars  were 
importable  articles  under  the  tarifif  laws,  but  whether,  coming  as  they 
did  from  a  port  alleged  to  be  domestic,  they  were  imported  from  a  for- 
eign country ;  in  other  words,  whether  they  were  imported  at  all  as 
that  word  is  defined  in  Woodrufif  v.  Parham,  8  Wall.  123,  132,  19  h. 
Ed.  382,  384.  We  think  the  decision  in  the  Fassett  Case  is  conclu- 
sive to  the  effect  that,  if  the  question  be  whether  the  sugars  were  im- 
ported or  not,  such  question  could  not  be  raised  before  the  Board  of 
General  Appraisers ;  and  that  whether  they  were  imported  merchan- 
dise for  the  reasons  given  in  the  Fassett  Case  that  a  vessel  is  not  an 
importable  article,  or  because  the  merchandise  was  not  brought  from  a 


5G4  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

foreign  country,  is  immaterial.  In  either  case  the  article  is  not  im- 
ported. 

Conceding,  then,  that  section  3011  has  been  repealed,  and  that  no 
remedy  exists  under  the  customs  administrative  act,  does  it  follow  that 
no  action  whatever  will  lie?  If  there  be  an  admitted  wrong,  the  courts 
will  look  far  to  supply  an  adequate  remedy.  If  an  action  lay  at  com- 
mon law,  the  repeal  of  sections  2931  and  3011,  regulating  proceedings 
in  customs  cases  (that  is,  turning  upon  the  classification  of  merchan- 
dise), to  make  way  for  another  proceeding  before  the  Board  of  Gen- 
eral Appraisers  in  the  same  class  of  cases,  did  not  destroy  any  right 
of  action  that  might  have  existed  as  to  other  than  customs  cases ;  and 
the  fact  that  by  section  25  no  collector  shall  be  liable  "for  or  on  ac- 
count of  any  rulings  or  decisions  as  to  the  classification  of  said  mer- 
chandise or  the  duties  charged  thereon,  or  the  collection  of  any  dues, 
charges,  or  duties  on  or  on  account  of  said  merchandise,"  or  any  other 
matter  which  the  importer  might  have  brought  before  the  Board  of 
General  Appraisers,  does  not  restrict  the  right  which  the  owner  of  the 
merchandise  might  have  against  the  collector  in  cases  not  falling  with- 
in the  customs  administrative  act.  If  the  position  of  the  government 
be  correct,  the  plaintiff  would  be  remediless ;  and  if  a  collector  should 
seize  and  hold  for  duties  goods  brought  from  New  Orleans,  or  any 
other  concededly  domestic  port,  to  New  York,  there  would  be  no 
method  of  testing  his  right  to  make  such  seizure.  It  is  hardly  possi- 
ble that  the  owner  could  be  placed  in  this  position.  But  we  are  not 
without  authority  upon  this  point. 

The  case  of  Elliott  v.  Swartwout,  10  Pet.  137,  9  L.  Ed.  373,  was  an 
action  of  assumpsit  against  the  collector  of  the  port  of  New  York  to 
recover  certain  duties  upon  goods  alleged  to  have  been  improperly 
classified.  It  was  held  that  as  the  payment  was  purely  voluntary, 
by  a  mutual  mistake  of  law,  no  action  would  lie  to  recover  them 
back,  although  it  would  have  been  different  if  they  had  been  paid 
under  protest.  Said  Mr.  Justice  Thompson :  "Here,  then,  is  the 
true  distinction :  when  the  money  is  paid  voluntarily  and  by  mistake 
to  an  agent,  and  he  has  paid  it  over  to  his  principal,  he  cannot  b^ 
made  personally  responsible;  but  if,  before  paying  it  over,  he  is 
apprised  of  the  mistake,  and  required  not  to  pay  it  over,  he  is  per- 
sonally liable."  If  the  payment  of  the  money  be  accompanied  by 
a  notice  to  the  collector  that  the  duties  charged  are  too  high  and 
that  the  person  paying  intends  to  sue  to  recover  back  the  amount 
erroneously  paid,  it  was  held  that  such  action  must  He  "unless  the  broad 
proposition  can  be  maintained,  that  no  action  will  lie  against  a  collector 
to  recover  back  an  excess  of  duties  paid  him,  but  that  recourse  must  be 
had  to  the  government  for  redress."  The  case  recognized  the  fact 
that,  with  respect  to  money  paid  under  a  mistake  of  law,  the  collector 
stood  in  the  position  of  an  ordinary  agent,  and  could  be  made  personal- 
ly liable  in  case  the  money  were  paid  under  protest. 


Ch.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL  CONTROL.         5G5 

This  decision  was  made  in  1836.  Apparently  in  consequence  of  it 
an  act  was  passed  in  1839  requiring  moneys  collected  for  duties  to  be 
deposited  to  the  credit  of  the  Treasurer  of  the  United  States ;  and  it 
was  made  the  duty  of  the  Secretary  of  the  Treasury  to  draw  his  war- 
rant upon  the  Treasurer  in  case  he  found  more  money  had  been  paid 
to  the  collector  than  the  law  required.  It  was  held  by  a  majority  of 
this  court  in  Gary  v.  Curtis,  3  How.  236,  11  h.  Ed.  576,  that  this  act 
precluded  an  action  of  assumpsit  for  money  had  and  received  against 
the  collector  for  duties  received  by  him,  and  that  the  act  of  1839  fur- 
nished the  sole  remedy.  It  was  said  of  that  case  in  Arnson  v.  Murphy, 
109  U.  S.  238,  240,  3  Sup.  Ct.  184,  186,  27  L.  Ed.  920,  921 :  "Congress, 
being  in  session  at  the  time  that  decision  was  announced,  passed  the 
explanatory  act  of  February  26,  1845,  which,  by  legislative  construc- 
tion of  the  act  of  1839,  restored  to  the  claimant  his  right  of  action 
against  the  collector,  but  required  the  protest  to  be  made  in  writing  at 
the  time  of  payment  of  the  duties  alleged  to  have  been  illegally  exacted, 
and  took  from  the  Secretary  of  the  Treasury  the  authority  to  refund 
conferred  by  the  act  of  1839  (5  Stat.  349,  727,  c.  22).  This  act  of  1845 
was  in  force,  as  was  decided  in  Barney  v.  Watson,  92  U.  S.  449,  23  L. 
Ed.  730,  until  repealed  by  implication  by  the  act  of  June  30,  1864"  (13 
Stat.  214,  c.  171,  §  14),  carried  into  the  Revised  Statutes  as  §§  2931 
and  3011. 

In  the  same  case  of  Arnson  v.  Murphy,  109  U.  S.  238,  3  Sup.  Ct. 
184,  27  L.  Ed.  920,  it  was  decided  that  the  common-law  right  of  action 
against  the  collector  to  recover  back  duties  illegally  collected  was  taken 
away  by  statute,  and  a  remedy  given,  based  upon  these  sections,  which 
was  exclusive.  The  decision  in  Elliott  v.  Swartwout  was  recognized, 
but  so  far  as  respected  customs  cases  (i.  e.,  classification  cases)  was 
held  to  be  superseded  by  the  statutes.  So  in  Schoenfeld  v.  Hendricks. 
152  U.  S.  691,  14  Sup.  Ct.  754,  38  L.  Ed.  601,  it  was  held  that  an 
action  could  not  be  maintained  against  the  collector,  either  at  common 
law  or  under  the  statutes,  to  recover  duties  alleged  to  have  been  ex- 
acted, in  1892,  upon  an  importation  of  merchandise,  the  remedy  giv- 
en through  the  Board  of  General  Appraisers  being  exclusive. 

The  criticism  to  be  made  upon  the  applicabihty  of  these  cases  is  that 
they  dealt  only  with  imported  merchandise  and  with  the  duties  col- 
lected thereon,  and  have  no  reference  whatever  to  exactions  made  by 
a  collector,  under  color  of  the  revenue  laws,  upon  goods  which  have 
never  been  imported  at  all.  With  respect  to  these  the  collector  stands 
as  if,  under  color  of  his  office,  he  had  seized  a  ship  or  its  equipment, 
or  any  other  article  not  comprehended  within  the  scope  of  the  tariff 
laws.  Had  the  sugars  involved  in  this  case  been  admittedly  imported 
that  is,  brought  into  New  York  from  a  confessedly  foreign  country, 
and  the  question  had  arisen  whether  they  were  dutiable,  or  belonged 
to  the  free  list,  the  case  would  have  fallen  within  the  customs  admin- 
istrative act,  since  it  would  have  turned  upon  a  question  of  classifica- 
tion. 


56G  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

The  fact  tliat  the  collector  may  have  deposited  the  money  in  the 
treasury  is  no  bar  to  a  judgment  against  him,  since  Rev.  St.  §  989 
(U.  S.  Comp.  St.  1901,  p.  708),  provides  that,  in  case  of  a  recovery  of 
any  money  exacted  by  him  and  paid  into  the  treasury,  if  the  court 
certifies  that  there  was  probable  cause  for  the  act  done,  no  execution 
shall  issue  against  him,  but  the  amount  of  the  judgment  shall  be  paid 
out  of  the  proper  appropriation  from  the  treasury. 

We  are  not  impressed  by  the  argument  that,  if  the  plaintiffs  insisted 
that  these  sugars  were  not  imported  merchandise,  they  should  have 
stood  upon  their  rights,  refused  to  enter  the  goods,  and  brought  an 
action  of  replevin  to  recover  their  possession.  It  is  true  that,  to  pre- 
vent the  seizure  of  the  sugars,  plaintiffs  did  enter  them  as  imported 
merchandise ;  but  any  admission  derivable  from  that  fact  is  explained 
by  their  protest  against  the  exaction  of  duties  upon  them  as  such.  They 
waived  nothing  by  taking  this  course.  The  collector  lost  nothing, 
since  he  was  apprised  of  the  course  they  would  probably  take.  It  is 
true  that  in  the  Fassett  Case,  142  U.  S.  479,  12  Sup.  Ct.  295,  35  L.  Ed. 
1087,  the  proceeding  was  by  libel  for  possession  of  the  vessel  which  is 
analogous  to  an  action  of  replevin  at  common  law ;  but  it  would 
appear  that  Rev.  St.  §  934  (U.  S.  Comp.  St.  1901,  p.  689),  would 
stand  in  the  way  of  such  a  remedy  here,  since  by  that  section  "all 
property  taken  or  detained  by  any  officer  or  other  person  under  au- 
thority of  any  revenue  law  of  the  United  States  shall  be  irrepleviable, 
and  shall  be  deemed  to  be  in  the  custody  of  the  law,  and  subject  only 
to  the  orders  and  decrees  of  the  courts  of  the  United  States  having 
jurisdiction  thereof."  If  the  words  "under  authority  of  any  rev- 
enue law"  are  to  be  construed  as  if  they  read  "under  color  of  any  rev- 
enue law,"  it  would  seem  that  these  sugars  could  not  be  made  the 
subject  of  a  replevin;  but  even  conceding  that  replevin  would  lie, 
we  consider  it  merely  a  choice  of  remedies,  and  that  the  plaintiffs  were 
at  liberty  to  waive  the  tort  and  proceed  in  assumpsit. 

We  are  all  of  opinion  that  this  action  was  properly  brought.  *  *  * 


SECTION  72.— SAME— QUESTIONS  OF  LAW 


NORTH  GERMAN  LEOYD  S.  S.  CO.  v.  HEDDEN,  Collector. 

SAME  V.  MAGONE,  Collector. 

(Circuit  Court  of  United  States,  D.  New  Jersey,  1890.    43  Fed.  17.) 

Wales,  J.^^  The  plaintiff,  a  duly  organized  corporation  under  the 
laws  of  the  Hanseatic  republic  of  Bremen,  which  is  a  part  of  the  Ger- 
man empire,  is  the  owner  of  a  line  of  ocean  steamships,  plying  regu- 

17  Only  a  portion  of  the  opinion  of  Wales,  J.,  is  printed. 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL   CONTROL.  507 

larly  between  the  ports  of  Bremen  and  New  York,  and  brings  these  ac- 
tion's, under  section  2931,  Rev.  St.  (U.  S.  Comp.  St.  1901,  p.  1933), 
to  recover  the  amount  of  certain  tonnage  dues,  alleged  to  have  been 
unlawfully  collected  from  said  ships  during  the  period  extending  from 
June  26,  1884,  to  July  28,  1888,  and  while  the  defendants  were  suc- 
cessively collectors  of  customs  at  the  last-named  port.  The  vessels 
cleared  from  Bremen  for  New  York  via  Southampton,  Eng.,  stopping 
at  or  near  the  latter  place  temporarily,  to  discharge  cargo  and  pas- 
sengers, and  to  take  on  board  additional  cargo,  passengers,  and  mails. 
The  consignees  of  the  vessels  paid  the  dues,  in  every  instance,  under 
protest,  and  the  plaintiff  appealed  to  the  Secretary  of  the  Treasury, 
and  finally,  at  the  suggestion  of  the  latter  officer  and  with  the  con- 
currence of  the  department  of  justice,  brought  these  actions  to 
determine  the  authority  of  the  defendants.     *     *     * 

By  article  9  of  the  treaty  of  December  20,  1827,  between  the  United 
States  and  the  Hanseatic  republics,  "the  contracting  parties  *  *  '■'' 
engage  mutually  not  to  grant  any  particular  favor  to  other  nations,  in 
respect  of  commerce  and  navigation,  which  shall  not  immediately  be- 
come common  to  the  other  party."  Public  Treaties,  400.  Article  9  of 
the  Prussian-American  treaty  of  May  1,  1828  (Pub.  Treaties,  656), 
contains  a  like  stipulation.  These  treaties  have  been  held  by  both  the 
American  and  German  governments  to  be  valid  for  all  Germany.  On 
the  26th  of  January,  1888,  the  President,  in  virtue  of  the  authority 
vested  in  him  by  section  11  of  the  act  of  June  19,  1886,  c.  421,  24 
Stat.  81  (U.  S.  Comp.  St.  1901,  p.  2850),  issued  his  proclamation, 
wherein,  after  reciting  that  he  had  received  satisfactory  proof  that  no 
tonnage  or  lighthouse  dues,  or  any  equivalent  tax  or  taxes  whatever, 
are  imposed  upon  American  vessels  entering  the  ports  of  the  German 
empire,  either  by  the  imperial  government  or  by  the  governments  of 
the  German  maritime  states,  and  that  vessels  belonging  to  the  United 
States  are  not  required,  in  German  ports,  to  pay  any  fee  or  due 
of  any  kind  or  nature,  or  any  import  duty  higher  or  other  than  is  pay- 
able by  German  vessels  or  their  cargoes,  did  "declare  and  proclaim 
that  from  and  after  the  date  of  this  my  proclamation  shall  be  sus- 
pended the  collection  of  the  whole  of  the  duty  of  six  cents  per  ton 
:;--  *  :i<  i^ipon  vessels  entered  in  the  ports  of  the  United  States  from 
any  of  the  ports  of  the  empire  of  Germany,  *  *  *  ^nd  the  sus- 
pension hereby  declared  and  proclaimed  shall  continue  so  long  as  the 
reciprocal  exemption  of  vessels  belonging  to  citizens  of  the  United 
States  and  their  cargoes  shall  be  continued  in  the  said  ports  of  the 
empire  of  Germany,  and  no  longer." 

The  commissioner  of  navigation,  in  his  circular  letter  No.  19,  dated 
February  1,  1888,  and  approved  by  the  Secretary  of  the  Treasury, 
addressed  to  the  collectors  of  customs  and  others,  decided  that  the 
President's  proclamation  does  not  apply  to  vessels  which  entered  be- 
fore the  date  of  the  proclamation,  and  that  only  those  German  vessels 
"arriving  directly  from  the  ports  of  the  German  empire  may  be  admit- 


568  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part    3 

ted  under  the  proclamation  without  the  payment  of  the  dues  therein 
mentioned."  The  commissioner  of  navigation  claims  authority  to 
make  this  decision  by  virtue  of  section  3  of  the  act  of  Congress  of 
July  5,  188i,  c.  221,  23  Stat.  119  (U.  S.  Comp.  St.  1901,  p.  199), 
entitled  "An  act  to  constitute  a  bureau  of  navigation  in  the  Treasury 
Department,"  which  reads  as  follows :  "That  the  commissioner  of 
navigation  shall  be  charged  with  the  supervision  of  the  laws  relating 
to  the  admeasurement  of  vessels,  and  the  assigning  of  .signal  letters 
thereto,  and  of  designating  their  official  number;  and  on  all  ques- 
tions of  interpretation,  growing  out  of  the  execution  of  the  laws  relat- 
ing to  these  subjects,  and  relating  to  the  collection  of  tonnage  tax, 
and  to  the  refunding  of  such  tax  when  collected  erroneously  or 
illegally,  his  decision  shall  be  final." 

The  plaintiff's  vessels  were  German  vessels,  and  on  the  19th  day  of 
June,  1886,  and  thereafter  until  now,  the  government  of  Germany  ex- 
acted no  tonnage  tax  or  taxes  whatever  on  vessels  of  the  United  States 
arriving  in  German  ports.     *     *     * 

As  to  the  time  when  the  act  of  June  19,  1886,  went  into  operation, 
whether  immediately  from  and  after  the  date  of  its  approval,  or  not 
until  the  date  of  the  President's  proclamation,  and  also  whether  the 
voyages  of  the  plaintiff's  vessels  from  Bremen  to  New  York  must 
be  made  "directly,"  and  without  stoppage  at  an  intermediate  port, 
in  order  to  be  exempted  from  the  imposition  and  payment  of  tonnage 
dues,  the  decision  of  these  questions  by  the  commissioner  of  naviga- 
tion must  be  held  to  be  conclusive,  unless  so  much  of  section  3  of  the 
act  of  July  5,  1884,  which  makes  his  decision  final  in  such  matters, 
is  unconstitutional.  Much  learning  and  ability  have  been  employed 
by  plaintiff's  counsel  to  establish  the  invalidity  of  this  portion  of  the 
act,  which  invests  a  department  officer  with  such  unlimited  judicial 
power,  and  by  which  he  is  enabled  to  decide  all  contests  in  relation 
to  alleged  illegal  dues,  ex  parte,  and  absolutely.  On  the  other  hand, 
the  labor  and  responsibility  of  the  court  have  been  increased  by  the 
omission  of  the  defendant's  counsel  to  furnish  any  assistance  towards 
the  solution  of  the  questions,  and  permitting  them  to  pass  sub  silentio. 
The  .subject,  however,  is  not  res  integra.  In  Gary  v.  Curtis,  3  How. 
236,  11  L.  Ed.  576,  the  Supreme  Court  had  under  consideration  the 
constitutionality  of  the  third  section  of  the  act  of  Congress  of  March 
3,  1839,  entitled  "An  act  making  appropriations  for  the  civil  and  dip- 
lomatic expenses  of  the  government  for  the  year  1839,"  by  which  the 
Secretary  of  the  Treasury  was  authorized  to  finally  decide  when  more 
duties  had  been  paid  to  any  collector  of  customs,  or  to  any  person  act- 
ing as  such,  than  the  law  required,  and  to  draw  his  warrant  in  favor  of 
the  person  or  persons  entitled  for  a  refund  of  the  amounts  so  overpaid. 
The  opinion  of  the  court  discusses  very  ably  and  at  much  length  the 
questions  involved  in  that  case. 

A  few  sentences  taken  from  the  opinion  will  indicate  the  grounds 
upon  which  the  validity  of  the  act  of  1839  was  sustained :    "We  have 


Ch.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL  CONTROL.         569 

no  doubts  [say  the  court]  of  the  objects  or  the  import  of  that  act. 
We  cannot  doubt  that  it  constitutes  the  Secretary  of  the  Treasury  the 
source  whence  instructions  are  to  flow ;  that  it  controls  both  the  posi- 
tion and  the  conduct  of  the  collectors  of  the  revenue;  that  it  has 
denied  to  them  any  right  or  authority  to  retain  any  portion  of  the 
revenue  for  purposes  of  contestation  or  indenmity ;  has  ordered  and 
declared  those  collectors  to  be  the  mere  organs  of  receipt  and  transfer, 
and  has  made  the  head  of  the  Treasury  Department  the  tribunal  for 
the  examination  of  claims  for  duties  said  to  have  been  improperly 
paid.  *  *  *  It  is  contended,  however,  that  the  language  and  the 
purposes  of  Congress,  if  really  what  we  hold  them  to  be  declared  in 
the  statute  of  1839,  cannot  be  sustained,  because  they  would  be  repug- 
nant to  the  Constitution,  inasmuch  as  they  would  debar  the  citizen 
of  his  right  to  resort  to  the  courts  of  justice.  *  '■'  *  The  objec- 
tion above  referred  to  admits  of  the  most  satisfactory  refutation. 
This  may  be  found  in  the  following  positions,  familiar  in  this  and  in 
most  other  governments,  viz.  that  the  government,  as  a  general  rule, 
claims  an  exemption  from  being  sued  in  its  own  courts.  That  al- 
though, as  being  charged  with  the  administration  of  the  laws,  it  will 
resort  to  those  courts  as  means  of  securing  this  great  end,  it  will  not 
permit  itself  to  be  impleaded  therein,  save  in  instances  forming  con- 
ceded and  express  exceptions.  Secondly,  in  the  doctrine,  so  often 
ruled  in  this  court,  that  the  judicial  power  of  the  United  States,  al- 
though it  has  its  origin  in  the  Constitution,  is  (except  in  enumerated 
instances,  applicable  exclusively  to  this  court)  dependent  for  its  dis- 
tribution and  organization,  and  for  the  modes  of  its  exercise,  entirely 
upon  the  action  of  Congress,  who  possess  the  sole  power  of  creating 
the  tribunals  (inferior  to  the  Supreme  Court)  for  the  exercise  of  the 
judicial  power,  and  of  investing  them  with  jurisdiction  either  limited, 
concurrent,  or  exclusive,  and  of  withholding  jurisdiction  from  them  in 
the  exact  degrees  and  character  which  to  Congress  may  seem  proper 
for  the  public  good.  To  deny  this  position  would  be  to  elevate  the 
judicial  over  the  legislative  branch  of  the  government,  and  to  give  to 
the  former  powers  limited  by  its  own  discretion  merely.  It  follows, 
then,  that  the  courts  created  by  statute  must  look  to  the  statute  as  the 
warrant  for  their  authority.  *  *  *  The  courts  of  the  United 
States  are  all  limited  in  their  nature  and  constitution,  and  have  not 
the  powers  inherent  in  courts  existing  by  prescription  or  by  the  com- 
mon law.  *  *  *  Xhe  courts  of  the  United  States  can  take  cog- 
nizance only  of  subjects  assigned  to  them  expressly  or  by  necessary 
implication ;  a  fortiori,  they  can  take  no  cognizance  of  matters  that 
by  law  are  either  denied  to  them,  or  expressly  referred  ad  aliud  ex- 
amen." 

This  exposition  of  the  origin  and  extent  of  the  jurisdiction  of  the 
courts  of  the  United  States  was  reaffirmed  in  Sheldon  v.  Sill,  8  How. 
449,  12  L.  Ed.  1147,  where  it  was  held  that  courts  created  by  statute 
can  have  no  jurisdiction  but  such  as  the  statute  confers.     The  right 


570  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    3 

given  by  section  2931,  Rev.  St.,  to  sue  for  overpaid  dues  is  taken 
away  by  the  act  of  July  5,  1884,  and  the  power  to  determine  contro- 
versies arising-  from  alleged  exactions  by  collectors  is  deposited  with 
the  commissioner  of  navigation.  Such  is  the  effect  of  the  decisions 
just  cited,  and  which,  as  long  as  they  are  not  overruled  by  the  tribunal 
which  made  them,  must  be  obeyed  as  the  law  of  the  land.  The 
authorities  referred  to  by  plaintiff's  counsel  are  cases  where  depart- 
ment officers,  in  making  regulations  to  be  observed  by  their  sub- 
ordinates, exceeded  their  statutory  power,  but  in  no  one  instance 
was  it  pretended  that  the  officer  was  clothed  with  the  power  to  make 
a  final  decision  in  contested  matters.  It  was  perhaps  unnecessary, 
in  view  of  Cary  v,  Curtis,  and  Sheldon  v.  Sill,  that  I  should  have 
done  more  than  acquiesce  in  the  doctrines  there  announced,  and  sup- 
port the  validity  of  the  act  of  July  5,  1884,  without  further  discussion, 
but  the  large  amount  of  money  involved  in  the  present  actions,  and 
the  earnestness  and  force  with  which  the  plaintiff's  claims  have  been 
pressed,  have  induced  me  to  make  a  more  extended  presentation  of 
them  than  was  at  first  designed.  It  must  be  borne  in  mind  that  this 
court  is  not  called  on  to  express  any  opinion  on  the  justice  or  ex- 
pediency of  placing  such  unlimited  power  in  the  hands  of  the  com- 
missioner of  navigation  as  is  conferred  by  the  act  of  July  5,  1884. 
The  duty  of  the  court  is  to  discover  whether  the  act  is  in  conflict  with 
the  Constitution,  and,  on  beings  satisfied  that  it  is  not,  to  judge  ac- 
cordingly. To  pursue  any  other  course  would  be  not  only  extra- 
judicial, but  also  improper,  in  assuming-  to  criticise  the  wisdom  of 
Congress  in  making  the  law.  Neither  is  the  court  required  to  say 
whether  the  commissioner  of  navigation  is  or  is  not  correct  in  his 
interpretation  of  the  law.  Congress  has  seen  fit  to  constitute  him 
the  final  arbiter  in  certain  disputes,  and  Congress  alone  can  supply  a 
remedy  for  any  wrong  which  may  have  arisen  from  his  construction 
of  the  law  relating  to  the  collection  of  tonnage  due. 

Let  judgment  be  entered  in  each  case  for  the  defendant. 


LAIDLAW  V.  ABRAHAM,  Collector. 
(Circuit   Court  of  United   States,   D.  Oregon,   1890.     43   Fed.  297.) 

Deady,  J. ^8  The  plaintiff,  James  Laidlaw%  doing  business  as 
"James  Laidlaw  &  Co.,"  brings  this  action  against  Hyman  Abraham, 
collector  of  customs  at  the  port  of  Portland,  in  the  district  of  Walla- 
met  to  recover  the  sum  of  $793.50,  alleged  to  have  been  wrongfully 
exacted  by  the  defendant  from  the  British  ship  Largo  Law,  as  a  ton- 
nage tax.     *     *     * 

The  only  other  point  made  in  support  of  the  demurrer  is  that  the 

decision  on  the  appeal  to  the  Secretary  was,  under  Act  July  5,  1884, 

* 

18  Only  a  portion  of  the  opinion  of  Deady,  .7.,  is  printed. 


Ch.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL   CONTROL.         571 

c.  221,  23  Stat.  118  (U.  S.  Comp.  St.  1901,  p.  199),  in  fact  made  by 
the  commissioner  of  navigation,  and  is  by  said  act  made  final,  and  is 
tlierefore  a  bar  to  this  action. 

This  act  is  entitled  "An  act  to  constitute  a  bureau  of  navigation 
in  the  Treasury  Department."  The  commissioner  created  by  it  is 
charged,  "under  the  direction  of  the  Secretary  of  the  Treasury"  with 
many  duties  concerning  "the  commercial,  marine,  and  merchant  sea- 
men of  the  United  States ;"  and,  by  section  3  thereof,  "with  the 
supervision  of  the  laws  relating  to  the  admeasurement  of  vessels  and 
the  assigning  of  signal  letters  thereto,  and  of  designating  their  of- 
ficial number;  and. on  all  questions  of  interpretation  growing  out  of 
the  execution  of  the  laws  relating  to  these  subjects,  and  relating  to  the 
the  collection  of  tonnage  tax,  and  to  the  refund  of  such  tax  when 
collected  erroneously  or  illegally,  his  decision  shall  be  final." 

At  first  blush  it  may  appear  that  this  provision  in  the  Act  of  1884 
repealed  so  much  of  sections  2931,  3011,  Rev.  St.  (U.  S.  Comp.  St. 
1901,  pp.  1933,  1985),  as  gives  the  person  paying  such  illegal  tax  the 
right  of  redress  in  the  courts,  after  an  unsuccessful  appeal  to  the 
department.  But,  on  reflection,  I  am  satisfied  that  the  word  "final" 
is  used  in  this  connection  with  reference  to  the  department,  of  which 
the  commissioner  is  generally  a  subordinate  part. 

In  my  judgment,  the  purpose  of  the  provision  is  to  relieve  the  head 
of  the  department  from  the  labor  of  reviewing  the  action  of  the  com- 
missioner in  these  matters,  to  sidetrack  into  the  bureau  of  navigation 
the  business  of  rating  vessels  for  tonnage  duties,  and  deciding  ques- 
tions arising  on  appeals  from  the  exaction  of  the  same  by  collectors. 
The  appeal  is  still  taken  to  the  Secretary  of  the  Treasury,  as  provided 
in  section  2931,  but  goes  to  the  commissioner  for  decision,  whose  ac- 
tion is  "final"  in  the  department,  as  it  would  not  be  but  for  this  pro- 
vision of  the  statute. 

This  being  so,  and  nothing  appearing  to  the  contrary,  it  follows 
that  the  right  of  action  given  to  the  unsuccessful  appellant  in  such 
cases  is  not  taken  away.  The  appeal  to  the  department  has  simply 
been  decided  by  the  commissioner,  rather  than  the  Secretary,  and, 
that  having  been  adverse  to  the  plaintiff,  his  right  of  action  against 
the  collector  attaches  at  once. 

And,  even  if  it  were  plain  that  Congress  in  the  passage  of  this  act 
intended  to  deprive  the  plaintiff  of  all  redress  in  the  courts,  might 
he  not  in  good  reason  claim  that  the  act  is  so  far  unconstitutional  and 
void,  as  being  contrary  to  the  fifth  amendment,  which  declares  that 
no  person  shall  be  deprived  of  his  "property  without  due  process  of 
law?" 

The  demurrer  is  overruled. 


572  RELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part 

SECTION   73.— SAME— QUESTIONS    OF   FACT 


HARRINGTON  v.  GUDDEN. 

(Supreme  Judicial  Court  of  Massaclinsetts,   1901.     179   Mass.  48G,  Gl  N.   E. 
54,  94  Am.   St.  Rep.  G13.) 

Exceptions  from  superior  court,  Middlesex   county. 

Action  by  one  Harrington,  as  collector  of  taxes,  against  one  Glid- 
den.  From  a  judgment  for  plaintiff,  defendant  brings  exceptions. 
Overruled. 

Hammond,  J.^®  In  this  action  the  plaintiff,  as  collector,  seeks  to 
recover  a  tax  assessed  upon  the  defendant,  as  trustee.  It  is  contend- 
ed by  the  defendant  that,  even  if  he  was  a  trustee,  such  was  the 
nature  and  location  of  the  property,  and  his  relation  to  it,  that  he 
was  not  taxable  as  such. 

The  first  question  is  whether  this  ground  of  the  defense  is  open 
to  the  defendant  in  this  action.  The  assessment  and  collection  of 
taxes  is  regulated  by  statute.  The  assessors  are  public  officers, 
and,  while  their  duties  are  of  a  quasi  judicial  nature,  their  juris- 
diction is  limited,  based  sometimes  upon  the  residence  of  the  person 
assessed,  or  of  some  other  person  interested  in  the  property,  and 
sometimes  upon  the  situation  of  the  property.  Without  reciting  in 
detail  the  statutes,  it  is  sufficient  to  say  that  they  provide  that  each 
person  may  bring  in  a  sworn  list  of  the  personal  property  for  which 
he  in  any  capacity  should  be  taxed,  and  this  list  is  to  be  received 
by  the  assessors  as  true,  except  as  to  valuation,  unless  he,  being- 
required  thereto  by  the  assessors,  refuses  to  answer  on  oath  all  nec- 
essary inquiries  as  to  the  nature  and  amount  of  his  property.  In 
case  a  person  does  not  bring  in  a  list,  the  assessors  shall  ascertain,  as 
nearly  as  possible,  his  taxable  property,  and  "make  an  estimate 
thereof  at  its  just  value,  according  to  their  best  information  and  be- 
lief," and  "such  estimate  shall  be  conclusive,"  except  in  certain 
cases  not  here  material.  Pub.  St.  c.  11,  §§  38—12.  Any  person  ag- 
grieved by  an  assessment  may  apply  for  an  abatement  to  the  assessors, 
and,  by  appeal  from  their  decision,  to  the  county  commissioners  or 
superior  court,  and  on  questions  of  law  may  reach  this  court;  but 
no  person  shall  have  an  abatement  unless  he  files  a  list,  as  above  pro- 
vided.    Id.  §§  69-73;    St.  1890,  c.  127. 

This  plain,  adequate,  and  complete  remedy  for  the  correction  of 
errors,  whether  of  law  or  fact,  is  the  only  one  provided  by  our  stat- 
utes; and  when  the  assessors  are  acting  within  their  jurisdiction, 
it  must  be  regarded  as  exclusive,  in  accordance  with  the  well-known 

19  Only  a  portion  of  tlie  opinion  of  Hammond,  J.,  is  printed. 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND   JUDICIAL   CONTROL.  573 

rule  that  "when  a  new  right  is  created  by  statute,  which  at  the  same 
time  provides  a  remedy  for  any  infringement  of  it,  that  remedy 
nuist  be  pursued."     Osborn  v.  Danvers,  6  Pick.  98,  99. 

But  when  the  assessors  are  acting  outside  their  jurisdiction,  their 
acts  are  absolutely  void.  Where,  for  instance,  the  tax  ordered  is 
illegal  because  for  a  purpose  not  authorized  by  law,  the  assessment  is 
void.  The  assessors  have  no  jurisdiction.  Bangs  v.  Snow,  1  Mass. 
181;    Stetson  v.  Kempton,  13  Mass.  272,  7  Am.  Dec.  145. 

So  where  the  assessment  is  upon  a  nonresident  for  personal  prop- 
erty, claimed,  by  reason  of  its  location  in  the  town  where  the  assess- 
ment is  made,  to  be  taxable  there,  if  it  appears  that  the  nonresident 
had  no  personal  property  assessable  there,  the  tax  is  wholly  void,  even 
if  he  had  taxable  real  estate  there.  The  reason  is  that,  the  person 
assessed  not  being  resident  in  the  town  where  the  assessment  is  made, 
and  so  not  within  the  jurisdiction  of  the  assessors,  their  right  to 
assess  him,  so  far  as  respects  personal  property,  depends  upon  whether 
he  has  assessable  personal  property  in  the  town.  Unless  he  has  such 
property  there,  their  acts  are  void  for  want  of  jurisdiction. 

Preston  v.  City  of  Boston,  12  Pick.  7,  a  leading  case,  affords  a  good 
illustration  of  the  application  of  this  principle.  The  plaintiff  being 
domiciled  in  Med  ford,  and  havmg  taxable  personal  estate,  but  having 
in  Boston  only  real  estate,  was  taxed  in  the  latter  place  for  both  real 
and  personal  estate.  He  paid  the  taxes,  and  in  an  action  to  recover 
back  the  money  it  was  held  that,  while  the  real  estate  tax  was  valid  the 
personal  estate  tax  was  invalid,  and  he  recovered  that  back.  The  ground 
of  the  decision  as  to  the  personal  property  was  that  the  plaintiff  was 
not  an  inhabitant  of  Boston,  and  so  not  Hable  to  be  taxed  there  at 
all  on  his  personal  property.  As  to  that  the  assessors  had  no  jurisdic- 
tion. In  giving  the  opinion,  Shaw,  C.  J.,  said :  "One  not  liable — not 
domiciled — is  not  w^ithin  the  jurisdiction  of  the  assessors  any  more 
than  a  stranger  from  another  state  who  should  happen  to  be  lodging 
at  a  hotel  when  the  tax  was  assessed.  The  whole  proceeding,  there- 
fore, in  regard  to  him  was  without  authority  ab  initio."  See,  also, 
Sumner  v.  Dorchester  Parish,  4  Pick.  361;  Inglee  v.  Bosworth,  5 
Pick.  498,  16  Am.  Dec.  419. 

Where,  however,  there  is  personal  property  of  a  nonresident  which 
is  taxable  in  the  town  where  it  is  situated,  the  assessors  of  that 
town  have  jurisdiction,  and  consequently  the  only  remedy  of  the 
person  aggrieved  is  by  abatement.  Little  v.  Greenleaf,  7  Mass,  236; 
Gray  v.  Kettell,  12  Mass.  161.  Again,  where  a  corporation  owns  real 
and  personal  estate,  and  is  taxable  for  the  real,  and  not  for  the  per- 
sonal, estate,  a  tax  upon  the  personal  estate  is  absolutely  void.  Man- 
ufacturing Co.  V.  Amesbury,  17  Mass.  461;  Boston  Water  Power  Co. 
v.  City  of  Boston,  9  Mete.  199;  Salem  Iron  Co.  v.  Inhabitants  of 
Danvers,  10  Mass.  514 — the  ground  of  the  decision  in  these  cases 
being  that  the  corporation  is  not  an  inhabitant  of  the  town  for  pur- 
poses o^   taxation.     And   the   same   principle   is   applied   where   the 


574  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

assessors  undertake  to  assess  a  tax  in  excess  of  what  is  called  for  or 
is  allowed  by  law.  Joyner  v.  Inhabitants  of  Egremont  School  Dist. 
No.  3,  3  Cush.  567;    Cone  v.  Forrest,  126  Mass.  98. 

These  and  similar  cases  all  proceed  upon  the  principle  that  an 
assessment  made  by  assessors  who  have  no  jurisdiction  is  not  the 
assessment  authorized  by  statute.  It  is  no  assessment  at  all,  and  is 
absolutely  void.  As  it  is  not  the  statutory  proceeding-,  the  statutory 
remedy  is  not  exclusive. 

Such  an  assessment,  therefore,  can  be  attacked  collaterally  in  an 
action  of  tort  against  the  assessors,  where  such  an  action  will  lie, 
or  in  an  action  against  the  town  to  recover  back  the  money  paid,  or 
in  defense  to  an  action  by  the  collector.  These  general  remedies 
are  not  for  those  who  are  aggrieved  by  assessors  acting  within  their 
jurisdiction,  but  are  allowable  to  redress  wrongs  inflicted  by  persons 
who  pretend  to  be  assessors,  but  who  are  not  such,  because  acting 
without  jurisdiction. 

Where,  however,  the  tax  is  for  a  legal  purpose,  and  the  assessors 
have  jurisdiction,  whether  it  is  based  upon  the  fact  that  the  person 
assessed  be  an  inhabitant  of  the  town  where  the  assessment  is  made,  or 
upon  the  situation  of  the  property,  or  any  other  jurisdictional  fact 
shown  to  exist,  and  they  proceed  essentially  in  accordance  with  the 
statutes,  their  decision  as  to  the  nature  and  amount  of  the  taxable 
property  of  a  person  who  has  not  brought  in  a  list  is  valid.  It  can- 
not be  attacked  in  any  collateral  proceeding,  but  must  stand  until 
changed  in  a  proceeding  under  the  statute  for  abatement.  There  are 
sound  and  obvious  reasons  for  this  rule,  which  are  set  forth  at  some 
length  in  Lincoln  v.  City  of  Worcester,  8  Cush.  55,  65,  66  [ante,  p. 
359]. 

Among  the  numerous  cases  where  the  doctrines  above  stated  have 
been  applied  by  this  court,  see,  in  addition  to  those  already  cited,  Bates 
V.  City  of  Boston,  5  Cush.  93 ;  Howe  v.  Same,  7  Cush.  373 ;  Bourne 
V.  Same,  2  Gray,  494;  Ingram  v.  Cowles,  150  Mass.  155,  23  N.  E. 
48;   Carleton  v.  Ashburnham,  102  Mass.  348. 

The  defendant  in  the  case  at  bar  was  an  inhabitant  of  Lowell,  and 
he  had  taxable  personal  property-  there.  The  only  list  he  brought 
to  the  assessors  was  that  of  February  24,  1890,  several  months  after 
the  warrant  had  been  committed  to  the  collector,  and  even  that  pur- 
ported to  relate  only  to  the  property  held  by  him  as  trustee.  Being  an 
inhabitant  of  the  city,  and  having  taxable  personal  property  there,  he 
was  within  the  jurisdiction  of  the  assessors.  While  the  tax  was  in 
part  against  him  as  an  individual,  and  in  part  as  trustee,  still  it  was 
all  a  personal  tax.  If  valid,  the  collector  could  sue,  distrain,  or  arrest, 
as  well  for  the  one  part  as  for  the  other. 

The  assessors  called  for  a  sworn  list  of  taxable  personal  property. 
Such  a  list  should  contain  all  such  property  held  by  a  person  either 
as  an  individual  or  in  a  representative  capacity.     In  the  absence  of 


Ch.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL  CONTROL.         575 

such  a  list  from  the  defendant,  the  assessors  proceeded  to  consider 
his  case.  They  had  before  them  not  only  the  question  whether  he 
was  taxable  for  any  personal  property  held  by  him  as  an  individual, 
but  also  whether  he  was  taxable  for  any  such  property  held  by 
him  in  a  representative  capacity.  The  whole  case  was  before  them, 
and  it  was  their  duty  to  investigate  and  decide  it.  That  duty  they 
performed,  and  they  decided  that  he  had  taxable  personal  property,  not 
only  as  an  individual,  but  as  a  trustee,  and  they  made  an  estimate 
thereof.  The  jury  have  found  that  in  performing  this  work  they 
"ascertained,  as  nearly  as  possible,  the  particulars  of  the  personal 
estate  held  by  the  defendant  as  trustee,  for  the  purpose  of  making  this 
assessment,"  and  that,  "having  obtained  these  particulars,  they  esti- 
mated such  property  at  its  just  value,  according  to  their  best  informa- 
tion and  belief." 

We  are  of  opinion  that  the  evidence  fully  justifies  the  finding. 
Indeed,  the  assessors  seem  to  have  been  impressed  with  the  importance 
and  magnitude  of  the  question,  and  to  have  made  unusual  efforts  to 
get  at  the  facts,  both  as  to  the  nature  and  value  of  the  property.  It  is 
true  that  a  tax  upon  real  estate  is  separate  and  distinct  from  that  on 
personal  estate  (Preston  v.  City  of  Boston,  ubi  supra),  but  we  do  not 
think  the  statutes  intended  that  there  should  be  a  division  of  the 
tax  on  personal  estate,  so  far  as  concerns  the  remedy  for  a  person 
aggrieved. 

We  are  not  unmindful  of  the  case  of  Dorr  v.  City  of  Boston,  6 
Gray,  131.  In  that  case  it  appeared  that  the  plaintiff  was  a  woman, 
and  had  no  taxable  property  in  this  state.  As  to  whether  the  case 
of  Preston  v.  City  of  Boston,  ubi  supra,  was  rightly  interpreted  in  that 
case,  see  Lincoln  v.  City  of  Worcester,  8  Cush.  63,  and  Bates  v.  City 
of  Boston,  5  Cush.  97. 

So  far,  therefore,  as  respects  the  nature  and  value  of  the  property, 
and  his  relation  to  it,  the  grievance  of  the  plaintiff,  if  any,  is  one  of 
overvaluation,  and  his  only  remedy  is  by  the  statutory  proceeding  for 
abatement.  He  cannot  avail  himself  of  this  portion  of  his  defense 
in  this  action.    Pierce  v.  Eddy,  153  i\Iass.  591,  59G,  26  N.  E.  99.  *  *  =^ 

The  defendant's  brief  contains  an  elaborate  argument  in  support  of 
the  proposition  that  our  statutes  relating  to  the  assessment  of  taxes 
are  unconstitutional,  because  they  do  not  give  the  party  assessed  an 
opportunity  to  be  heard.  But  he  does  have  full  opportunity  to  be 
heard  before  the  assessing  board,  if  he  desires  it,  before  the  demand 
becomes  conclusively  established  against  him,  and  that  is  enough. 
Cooley,  Tax'n,  pp.  361,  363,  361,  and  cases  cited.-*' 

There  was  ample  evidence  of  a  demand  upon  which  to  base  in- 
terest, and,  in  the  absence  of  anything  to  the  contrary  in  the  brief  of 
the  defendant,  we  consider  the  exception  on  that  point  waived. 

2  0  On  this  point,  see  Gliddeu  v.  Harrington,  ISO  U.  S.  1255,  23  Sup.  Ct 
574,  47  L.   Ed.  798    (1903). 


576  RELIEF   AGAINST   ADMIx\ISTRATIVE   ACTION.  (Part    2 

Without  going  over  the  exceptions  further  in  detail,  it  is  sufficient 
to  say  that  we  see  no  error  of  law  made  by  the  presiding  judge  at 
the  trial. 

Exceptions  overruled.-^ 

21  See  Weber  v.  Baird,  208  111.  200,  70  X.  E.  2.31  (1904) :  "We  think  a 
court  of  etiiiitj'  may  revise  the  decision  of  the  board  of  review  assessing 
property  to  a  taxpayer  as  havinjj;  been  owned  by  him  and  subject  to  taxa- 
tion and  omitted  from  the  schedule  prepared  by  him.  The  manner  in  which 
the  board  of  review  conducts  its  investigation  is  such  that  the  taxpayer  is 
not  advised  of  the  proofs  heard  or  information  obtained  by  the  board  rela- 
tive to  the  ownership  by  him  of  property  said  to  have  been  omitted  from 
the  schedule,  nor  has  he  an  opportunity  to  contest  the  truth  of  such  proof 
or  such  information  before  the  board.  He  cannot  appeal  from  any  decision 
of  the  board,  other  than  from  a  decision  that  certain  property  is  not  exempt 
from  assessment  for  taxation. t  Button  v.  Board  of  Review,  188  111.  386, 
~>S  N.  E.  953.  Equity  will  therefore  afford  a  remedy,  and  hear  and  deter- 
mine whether  the  board  correctly  decided  that  the  taxpayer  was  the  owner 
of  the  property  which  the  board  assessed  against  him  as  having  been  omit- 
ted bj^  him  from  his  schedule.  The  inquiry  in  such  an  equitable  proceed- 
ing is,  what  property  did  the  board  decide  the  taxpayer  owned  and  had  omit- 
ted from  his  schedule,  and  did  he  own  that  property?  What  the  board  de- 
cided is  to  be  determined  by  the  record  made  by  the  board  of  its  decision. 
A  taxpayer  seeking  the  aid  of  equity  must  therefore  show  the  record  made 
by  the  board,  and  then  he  will  be  heard  to  show  that  he  did  not  own  the 
property  there  specified  in  the  record.  If,  in  fact,  the  board  did  not  enter 
its  decision  on  the  assessment  books,  or  if  its  decision  did  not  show  on  such 
books  the  kind  and  class  of  property  said  to  have  been  omitted,  such  fail- 
ure would  vitiate  the  assessment,  unless  in  some  way  cured.  But  a  tax- 
l>ayer  cannot  ignore  the  record  made  by  the  board  of  review,  which,  if  law- 
fully rendered,  would  show  specifically  the  property  or  class  of  property 
which  the  board  decided  the  taxpayer  owned  and  had  not  listed  for  as- 
sessment, and  be  allowed  to  overturn  the  decision  by  seeking,  in  a  general 
way,  to  deny  that  he  had  any  other  property  than  that  he  had  listed." 

See,  also,  Vittum  v.  People,  183  111.  154,  55  N.  E.  GS9  (1899),  assessing 
too  high  a  I'ate. 

Section  15  of  the  tariff  act  of  June  10,  1890,  allows  an  appeal  from  the 
decision  of  the  Board  of  General  Appraisers,  as  to  the  construction  of  the 
law  and  the  facts  respecting  the  classification  of  such  merchandise  and  the 
rate  of  duty  imposed  thereon  under  such  classification,  to  the  Circuit  Court, 
for  a  review  of  the  questions  of  law  and  fact  involved  in  such  decision. 
However,  findings  of  the  appraisers  upon  conflicting  evidence  are  treated 
much  like  findings  of  a  jury,  and  are  set  aside  only  if  clearly  against  the 
evidence.  In  re  Kursheedt  Mfg.  Co.  (C.  C.)  49  Fed.  033  (1892);  In  re 
White  (C.  C.)  53  Fed.  787  (1893).  Method  of  proof  cannot  be  controlled 
by  treasury  regulations.     Pascal  v.   Sullivan   (C.  C.)    21  Fed.  496   (1884). 


t  Compare  the  principal   case  Harrington  v.  Glidden,   where  there  was  an  ap- 
peal from  the  action  of  the  assessors. 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND   JUDICIAL   CONTROL.         577 

SECTION  74.— SAME— QUESTIONS  OF  VALUE 


SPENCER  &  GARDNER  v.  PEOPLE. 

(Supreme   Court   of   Illinois,    1873.     GS   111.   510.) 

Appeal  from  the  circuit  court  of  Will  county. 

This  was  an  application  by  the  collector  of  Will  county,  to  the 
county  court  of  that  county,  for  judgment  against  certain  lands  for 
taxes  due  thereon,  for  the  year  1871,  and  costs.  The  case  was  taken 
by  appeal  to  the  circuit  court. 

The  landowners  filed  the  following  objections  to  the  rendition  of 
judgment:  First,  that  the  assessment  was  not  in  compliance  with 
■the  Constitution,  which  provides  that  taxes  must  be  so  levied  as  to 
be  uniform,  and  in  proportion  to  the  value  of  the  property  upon 
which  they  operate ;  second,  that  the  property  was  not  assessed  at 
its  true  value,  being  assessed  several  times  higher  than  property  of 
equal  value  adjoining  the  same. 

The  defendants  below  offered  to  prove  the  truth  of  their  objec- 
tions, which  the  court  refused  to  allow,  on  the  ground  that  the  de- 
fendants had  waived  the  objections  by  not  making  them  before  the 
proper  boards  of  review,  and  rendered  judgment  against  the  lands 
and  lots  for  the  taxes  assessed  thereon,  and  the  defendants  appealed. 

Mr.  Justice  Sheldon  delivered  the  opinion  of  the  court. 
■   The  question  presented  by  this  record  is  whether,  upon  an  appli- 
cation for  judgment  against  real  estate  for  delinquent  taxes,  the  ob- 
jection may  be  made  that  there  was  too  high  a  valuation  placed  upon 
the  land  by  the  assessor,  in  making  the  assessment. 

The  Constitution  provides  that  the  General  Assembly  shall  provide 
such  revenue  as  may  be  needful,  by  levying  a  tax  by  valuation,  so 
that  every  person  and  corporation  shall  pay  a  tax  in  proportion  to 
the  value  of  his,  her  or  its  property — such  value  to  be  ascertained 
by  some  person  or  persons,  to  be  elected  or  appointed  in  such  man- 
ner as  the  General  Assembly  shall  direct,  and  not  otherwise. 

The  provision  of  the  Constitution  has  respect  to  the  laws  which 
should  be  passed  by  the  Legislature  for  the  imposition  of  taxes,  and 
not  to  the  practical  working  of  the  laws.  The  framers  of  the  Con- 
stitution could  not  have  contemplated  any  such  consequence  as  that 
a  tax  levy  should  be  void,  in  case  an  assessor  should  happen  to  omit 
to  assess  any  taxable  property,  or  should  make  an  incorrect  valua- 
tion of  any  property,  whereby  would  be  produced  the  result  that 
every  person  would  not  actually  pay  a  tax  in  proportion  to  the  value 
of  his  property.  There  is  no  objection  made  that  the  revenue  law 
is  not  framed  in  accordance  with  the  constitutional  principle. 
Fr.Adm.Law — 37 


578  RELIEF  AGAINST  ADMIXISTKATIVE   ACTION.  (Part    2 

The  assessor  is  the  officer  who  has  been  provided  by  the  Legis- 
lature for  fixing-  the  vahiation  of  property  for  the  purpose  of  tax- 
ation. 

No  appeal  to  any  court  is  provided  from  the  assessor's  judgment 
in  fixing  the  vahie  of  property  for  taxation,^^  nor  has  any  express 
authority  been  conferred  upon  a  court  to  revise  such  valuation,  or 
to  correct  an  assessment,  or  order  a  new  one,  or  to  make  a  rebate 
of  any  tax. 

And  we  are  of  opinion  that  the  power  does  not  belong  to  any  court 
to  revise  the  assessment  made  by  an  assessor,  and  change  or  set 
aside  any  valuation  of  property  made  by  him,  where  his  judgment 
has  been  honestly  exercised,  and  upon  a  right  basis.  To  do  so  would 
seem  to  be  to  arrogate  the  power  of  ascertaining  the  value  of  prop- 
erty for  taxation,  which  ascertainment  of  value,  the  Constitution  de- 
clares, shall  be  by  some  person  or  persons  designated  by  the  Gen- 
eral Assembly,  and  not  otherwise. 

The  Legislature  has  provided  a  special  board  for  the  review  of 
assessments  in  the  matter  of  valuation,  as  follows :  The  assessor, 
town  clerk  and  supervisor  shall  attend  at  the  time  and  place  speci- 
fied in  the  notice  (before  directed  to  be  given),  and  on  the  applica- 
tion of  any  person  conceiving  himself  aggrieved  they  shall  review 
the  assessment;  and  when  the  person  so  objecting  thereto  shall 
make  an  affidavit  that  the  value  of  his  personal  estate  does  not  ex- 
ceed a  certain  sum  specified  in  such  affidavit,  the  assessor  shall  re- 
duce the  assessment  to  the  sum  specified  in  such  affidavit ;  and  if 
he,  or  any  other  one,  objects  to  the  valuation  put  upon  any  of  their 
real  estate,  the  board  shall  hear  the  objections,  and  may  reduce  the 
same  if  a  majority  of  the  board  think  it  advisable,  and  in  such  case 
the  assessor  shall  correct  his  list.  Laws  1861,  p.  242.  This  was  the 
law  in  force  at  the  time  this  assessment  was  made,  and  the  appel- 
lant should  have  applied  to  that  board  for  the  correction  of  any 
overvaluation  of  his  property. 

An  omission  to  assess  some  other  persons  liable  to  taxation,  or  to 
assess  a  portion  of  the  taxable  property  of  others,  would  be  an  ob- 
jection of  a  like  character  with  the  one  here  made,  as  the  efifect 
would  be  the  same,  though  it  might  be  less  in  degree,  as  that  of  an 
overvaluation,  to  wit,  to  cause  the  complaining  taxpayer  to  bear  an 
undue  proportion  of  the  burthen  of  taxation.  Yet  it  has  been  held 
that  such  an  omission  would  not  affect  the  validity  of  a  tax.  Mer- 
ritt  et  al.  v.  Farris  et  al,  22  111.  303  ;  Dunham  et  al.  v.  City  of  Chi- 
cago, 55  111.  357. 

In  the  case  of  Albany  &  West  Stockbridge  R.  Co.  v.  Town  of 
Canaan,  16  Barb.  (N.  Y.)  244,  it  was  held  that  the  action  of  as- 
sessors, so  long  as  they  confine  themselves  within  the  statute  rule, 

2  2  See,  as  to  earlier  law,  Bureau  County  v.  C.  B.  &  Q.  R.  Co.,  44  111.  220 
(1SC7). 


Cll.  0)       JUItlSDICTIOX,  COXCLUSIVENESS,  AND   JUDICIAL   CONTROL.  579 

is  conclusive,  however  grossly  they  may  err  in  estimating-  the  amount, 
and  that  the  tax  based  upon  the  assessment  is  like  a  judicial  sentence, 
and  can  be  assailed  only  for  fraud  or  want  of  jurisdiction.  So  it 
was  held,  in  Weaver  v.  Devendorff,  3  Denio  (X.  Y.)  IIT,  that  in 
fixing  the  value  of  taxable  property  by  an  assessor,  the  power  ex- 
ercised is,  in  its  nature,  purely  judicial. 

In  City  of  Chicago  v.  Burtice  et  al.,  24  111.  489,  it  was  said  that 
the  court  would  inquire  whether  the  commissioners  for  assessment 
fraudulently  valued  the  property  above  its  true  value,  but  that  if 
they  honestly  estimated  property  too  high  or  too  low,  the  court 
would  not  disturb  the  assessment ;  and  see,  to  the  like  effect,  Elliott 
V.  City  of  Chicago,  48  111.  293,  and  Jenks  et  al.  v.  City  of  Chicago, 
48  111.  296.  The  case  of  Creote  et  al.  v.  City  of  Chicago,  56  111. 
423,  which  is  relied  on  by  appellant's  counsel,  we  do  not  regard  as 
materially  variant  from  the  view  here  expressed.  It  was  only  held 
there  that  the  defense  of  fraud  in  the  making  of  the  assessment 
might  be  made,  as  also  that  the  assessment  was  made  on  a  wrong 
basis,  in  violation  of  the  statute  and  the  Constitution. 

In  the  present  case  there  was  no  suggestion  of  fraud,  or  that 
the  assessment  was  made  on  a  wrong  basis.  The  defense  against 
«the  entry  of  judgment,  as  offered,  we  must  regard  as  simply  one  of 
an  excess  of  valuation,  made  in  the  honest  exercise  of  the  judgment 
of  the  assessor,  and  we  are  of  opinion  it  was  rightly  excluded  by  the 
•court. 

The  judgment  is  affirmed. 

Judgment  affirmed.-" 

23  Accord:  New  Orleans  v.  Railroad  Co..  37  La.  Ann.  45  (1885);  Rock- 
land V.  Rockland  Water  Co.,  82  ^le.  188,  19  Atl.  163  (1889);  State  v.  Sad- 
ler, 21  Nev.  13,  23  Pac.  799  (1890);  Stanley  v.  Supervisors  of  Albany,  121 
U.  S.  535,  7  Sup.  Ct.  1234,  30  L.  Ed.  1000  (1887)  ;  Shumway  v.  Baker  Co , 
3  Or.  240  (1870). 

City  of  Chicago  v.  Burtice,  24  111.  489.  492  (18G0)  :  "It  is  nothing  less 
than  a  legal  fraud  if  the  commissioners  fix  a  valuation  upon  property  above 
its  real  value,  for  the  purpose  of  evading  the  provisions  of  the  law,  which 
forbids  them  to  assess  property  more  than  three  per  cent,  in  any  one  year. 
It  is  true  that  the  court  ought  not  willingly  to  ascribe  to  the  commissioners 
such  motives ;  but  when  an  outrageous  valuation  is  shown,  where,  without 
it,  the  amount  desired  could  not  be  assessed  within  the  three  per  cent.,  it 
would  seem  to  leave  the  court  at  liberty  to  draw  no  other  conclusion. 
*  *  *  We  hold,  without  hesitation,  that  this  is  a  proper  subject  of  in- 
quiry, and,  when  established,  constitutes  a  good  defense.  As  no  mathemati- 
cal rule  can  be  applied  to  determine,  with  certainty,  the  value  of  real  es- 
tate, and  especially  unimproved  city  property,  it  must  be  expected  that  the 
judgments  of  men  will  differ,  and,  if  commissioners  honestly  estimate  prop- 
erty too  high  or  too  low,  the  court  will  not  disturb  it;  but  when  an  assess- 
ment is  made  so  wide  of  the  true  value,  as  established  by  witnesses,  as  to 
raise  the  presumption  that  it  was  overestimated  from  design,  and  especially 
when  the  court  can  see  the  motives  prompting  to  siach  design,  it  will  not 
and  ought  not  to  hesitate  so  to  find.  The  court  did  not  err  in  admitting 
proof  of  the  value  of  the  property." 

See,  also,  Burton  Stock  Car  Co.  v.  Traeger,  187  111.  9.  .58  N.  E.  418  (1900)  ; 
State  Board  of  Equalization  v.  People,  191  111.  528,  01  N.  E.  339,  58  L.  R.  A. 
513  (1901),  valuation  too  low. 


580  RELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part   2 


HILTON  V.  MERRITT. 

(Supreme  Court  of  United  States,  1884.     110  U.   S.  97,  3  Sup.   Ct.  548, 
28  L.  Ed.  83.) 

Woods,  J.-*  *  *  *  The  question  presented  by  the  exception 
of  plaintiffs  is  whether  the  vakiation  of  merchandise  made  by  the 
customs  officers  under  the  statutes  of  the  United  States  for  the  pur- 
pose of  levying  duties  thereon  is,  in  the  absence  of  fraud  on  the 
part  of  the  officers,  conclusive  on  the  importer,  or  is  such  valuation 
reviewable  in  an  action  at  law  brought  by  the  importer  to  recover 
back  duties  paid   under  protest?     *     *     * 

The  provisions  of  the  statute  law  show  with  what  care  Congress 
has  provided  for  the  fair  appraisal  of  imported,  merchandise  subject 
to  duty,  and  they  show  also  the  intention  of  Congress  to  make  the 
appraisal  final  and  conclusive.  When  the  value  of  the  merchandise 
is  ascertained  by  the  officers  appointed  by  law,  and  the  statutory  pro- 
visions for  appeal  have  been  exhausted,  the  statute  declares  that 
the  "appraisement  thus  determined  shall  be  final  and  deemed  to  be  the 
true  value,  and  the  duties  shall  be  levied  thereon  accordingly."  This 
language  would  seem  to  leave  no  room  for  doubt  or  construction. 

The  contention  of  the  appellants  is  that  after  the  appraisal  of  mer- 
chandise has  been  made  by  the  assistant  appraiser,  and  has  been 
reviewed  by  the  general  appraiser,  and  a  protest  has  been  entered 
against  his  action  by  the  importer,  and  the  collector  has  appointed 
a  special  tribunal,  consisting  of  a  general  and  merchant  appraiser, 
to  fix  the  value,  and  they  have  reported  each  a  different  valuation  to 
the  collector,  who  has  decided  between  them  and  fixed  the  valua- 
tion upon  which  the  duties  were  to  be  laid,  that  in  every  such  case 
the  importer  is  entitled  to  contest  still  further  the  appraisement  and 
have  it  reviewed  by  a  jury  in  an  action  at  law  to  recover  back  the 
duties  paid. 

After  Congress  has  declared  that  the  appraisement  of  the  customs 
officers  should  be  final  for  the  purpose  of  levying  duties,  the  right 
of  the  importer  to  take  the  verdict  of  a  jury  upon  the  correctness 
of  the  appraisement  should  be  declared  in  clear  and  explicit  terms. 
So  far  from  this  being  the  case,  we  do  not  find  that  Congress  has 
given  the  right  at  all.  If,  in  every  suit  brought  to  recover  duties 
paid  under  protest,  the  jury  were  allowed  to  review  the  appraise- 
ment made  by  the  customs  officers,  the  result  would  be  great  un- 
certainty and  inequality  in  the  collection  of  duties  on  imports.  It  is 
quite  possible  that  no  two  juries  would  agree  upon  the  value  of 
different  invoices  of  the  same  goods.  The  legislation  of  Congress, 
to  which  we  have  referred,  was  designed,  as  it  appears  to  us,  to 
exclude  any  such  method  of  ascertaining  the  dutiable  value  of  goods. 

2  4  Only  a  portion  of  tlie  opinion  of  Woods,  J.,  is  printed. 


Ch.  9)      JURISDICTION,  CONCLUSIVEiNESS,  AND  JUDICIAL  CONTROL.  581 

This  court,  in  referring-  to  the  general  policy  of  the  laws  for  the 
collection  of  duties,  said  in  Bartlett  v.  Kane,  16  How.  263,  1-1  L.  Ed. 
931 :  "The  interposition  of  the  courts  in  the  appraisement  of  im- 
portations would  involve  the  collection  of  the  revenue  in  inextrica- 
ble confusion."  And,  referring  to  section  3  of  the  act  of  March  3, 
1851,  which  is  reproduced  in  section  2930,  Revised  Statutes,  this 
court  declared,  in  Belcher  v.  Linn,  24  How.  508,  16  L.  Ed.  754,  that, 
in  the  absence  of  fraud,  the  decision  of  the  customs  officers  "is  final 
and  conclusive,  and  their  appraisement,  in  contemplation  of  law,  be- 
comes, for  the  purpose  of  calculating  and  assessing  the  duties  due 
:to  the  United  States,  the  true  dutiable  value  of  the  importation." 
To  the  same  effect,  see  Tappan  v.  United  States,  2  Mason,  393,  Fed. 
Cas.  No.  13,719,  and  Bailey  v.  Goodrich,  2  Clifif.  597,  Fed.  Cas.  No. 
735. 

The  appellants  contend,  however,  that  the  right  to  review  the  ap- 
praisement of  the  customs  officers  by  a  jury  trial  is  given  to  the  im- 
porter by  sections  2931  and  3011  of  the  Revised  Statutes.  The  first 
of  these  sections  provides  that  on  the  entry  of  any  merchandise  the 
decision  of  the  collector  as  to  the  rate  and  amount  of  duties  shall  be 
final  and  conclusive,  unless  the  importer  shall,  within  two  days  after 
the  ascertainment  and  liquidation  of  the  proper  officers  of  the  cus- 
toms, give  notice  in  writing  to  the  collector  on  each  entry,  if  dis- 
satisfied with  his  decision,  setting  forth  distinctly  and  specifically 
the  ground  of  his  objection  thereto,  and  shall  within  thirty  days 
after  such  ascertainment  and  liquidation  appeal  therefrom  to  the  Sec- 
retary of  the  Treasury,  and  the  decision  of  the  Secretary  in  such  ap- 
peal shall  be  final  and  conclusive,  and  such  merchandise  shall  be  lia- 
ble to  duty  accordingly,  unless  suit  shall  be  brought  within  ninety 
days  after  such  decision  of  the  Secretary  of  the  Treasury.  Section 
3011  provides  that  any  person  who  shall  have  made  payment  under 
protest  of  any  money  as  duties,  when  such  amount  of  duties  was 
not,  or  was  not  wholly,  authorized  by  law,  may  maintain  an  action, 
which  shall  be  triable  by  jury,  to  ascertain  the  validity  of  such  de- 
mand and  payment  of  duties,  and  to  recover  back  any  excess  so 
paid ;  but  no  recovery  shall  be  allowed  in  such  action  unless  a  protest 
and  appeal  shall  have  been  taken  as  prescribed  in  section  2931. 

The  argument  is  that  by  these  sections  the  appraisement  which 
had  been  declared  final  by  section  2930  is  opened  for  review  by  a 
jury  trial.  Such  is  not,  in  our  opinion,  a  fair  construction  of  this 
legislation.  Considering  the  acts  of  Congress  as  establishing  a  sys- 
tem, and  giving  force  to  all  the  sections,  its  plain  and  obvious  mean- 
ing is  that  the  appraisement  of  the  customs  officers  shall  be  final, 
but  all  other  questions  relating  to  the  rate  and  amount  of  duties 
may,  after  the  importer  has  taken  the  prescribed  steps,  be  reviewed 
in  an  action  at  law  to  recover  duties  unlawfully  exacted.  The  rate 
and  amount  of  duties  depend  on  the  classification  of  the  imported 
merchandise;    that  is  to  say,  on  what  schedule  it  belongs  to.     Ques- 


582  RELIKF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    3 

tions  frequently  arise  whether  an  enumerated  article  belongs  to  one 
section  or  another,  and  section  2199  of  the  Revised  Statutes  provides 
that  there  shall  be  levied  on  every  nonenumerated  article  which  bears 
a  similitude  either  in  material,  quality,  texture,  or  the  use  to  which 
it  may  be  applied  to  any  enumerated  article  chargeable  with  duty,  the 
same  rate  of  duty  which  is  levied  and  charged  on  the  enumerated 
article  which  it  most  resembles  in  any  of  the  particulars  before  men- 
.tioned.  In  determining  the  rate  and  amount  of  duties,  the  value  of 
Ihe  merchandise  is  one  factor ;  the  question  what  schedule  it  prop- 
erly  falls   under  is   another. 

Congress  has  said  that  the  valuation  of  the  customs  officers  shall 
be  final,  but  there  is  still  a  field  left  for  the  operation  of  the  sections 
on  which  the  plaintiffs  in  error  rely.  Questions  relating  to  the  clas- 
sification of  imports,  and  consequently  to  the  rate  and  amount  of  duty, 
are  open  to  review  in  an  action  at  law.  This  construction  gives  ef- 
fect to  both  provisions  of  the  law.  If  we  yield  to  the  contention  and 
construction  of  plaintiff's  in  error,  we  must  strike  from  the  statute 
the  clause  which  renders  the  valuation  of  dutiable  merchandise  final. 

We  are  of  opinion,  therefore,  that  the  valuation  made  by  the  cus- 
toms officers  was  not  open  to  question  in  an  action  at  law  as  long- 
as  the  officers  acted  without  fraud  and  within  the  power  confer- 
red on  them  by  the  statute.  The  evidence  offered  by  the  plaintiffs, 
and  ruled  out  by  the  court,  tended  only  to  show  carelessness  or  ir- 
regularity in  the  discharge  of  their  duties  by  the  customs  officers, 
but  not  that  they  were  assuming  powers  not  conferred  by  the  stat- 
ute, and  the  questions  which  the  plaintiff's  proposed  to  submit  to  the 
jury  w^ere,  in  the  view  we  take  of  the  statute,  immaterial  and  ir- 
relevant.    *     *     * 


STANLEY  V.  ALBANY  COUNTY  SUP'RS. 

(Rnpreme  Court  of  United  States,  .1887.     321  U.  S.  535,  7  Sup.  Ct.  1234, 
30  L.  Ed.  1000.) 

Field,  J.-^  *  *  *  In  nearly  all  the  states,  probably  in  all  of 
of  them,  provision  is  made  by  law  for  the  correction  of  errors  and 
irregularities  of  assessors  in  the  assessment  of  property  for  the  pur- 
poses of  taxation.  This  is  generally  through  boards  of  revision  or 
equalization,  as  they  often  are  termed,  with  sometimes  a  right  of 
appeal  from  their  decision  to  the  courts  of  law.  They  are  estab- 
lished to  carry  into  effect  the  general  rule  of  equality  and  uniformity 
of  taxation  required  by  constitutional  or  statutory  provisions.  Abso- 
lute equality  and  uniformity  are  seldom,  if  ever,  attainable.  The  di- 
versity of  human  judgments,  and  the  uncertainty  attending  all  human 
evidence,  preclude  the  possibility  of  this  attainment.     Intelligent  men 

2  5  Ouly  a  portion  of  the  opinion  of  Field,  J.,  is  printed. 


Ch.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL  CONTROL.         583 

dift'er  as  to  the  value  of  even  the  most  common  objects  before  them 
— of  animals,  houses,  and  lands  in  constant  use.  The  most  that  can 
be  expected  from  wise  legislation  is  an  approximation  to  this  desira- 
ble end ;  and  the  requirement  of  equality  and  uniformity  found  in 
the  Constitutions  of  some  states  is  complied  with  when  designed  and 
manifest  departures  from  the  rule  are  avoided. 

To  these  boards  of  revision,  by  whatever  name  they  may  be  called, 
:the  citizen  must  apply  for  relief  against  excessive  and  irregular  tax- 
ation, where  the  assessing  officers  had  jurisdiction  to  assess  the  prop- 
erty. Their  action  is  judicial  in  its  character.  They  pass  judgment 
on  the  value  of  the  property  upon  personal  examination  and  evidence 
respecting  it.  Their  action  being  judicial,  their  judgments  in  cases 
within  their  jurisdiction  are  not  open  to  collateral  attack.  If  not 
corrected  by  some  of  the  modes  pointed  out  by  statute,  they  are 
conclusive,  whatever  errors  may  have  been  committed  in  the  assess- 
ment. As  said  in  one  of  the  cases  cited,  the  money  collected  on  such 
assessment  cannot  be  recovered  back  in  an  action  at  law,  any  more 
;than  money  collected  on  an  erroneous  judgment  of  a  court  of  com- 
petent jurisdiction  before  it  is  reversed. 

When  the  overvaluation  of  property  has  arisen  from  the  adoption 
of  a  rule  of  appraisement  which  conflicts  with  a  constitutional  or 
statutory  direction,  and  operates  unequally  not  merely  on  a  single  in- 
dividual, but  on  a  large  class  of  individuals  or  corporations,  a  party 
aggrieved  may  resort  to  a  court  of  equity  to  restrain  the  exaction  of 
the  excess,  upon  payment  or  tender  of  what  is  admitted  to  be  due. 
This  was  the  course  pursued  and  approved  in  Cummings  v.  National 
Bank,  101  U.  S.  153,  25  L.  Ed.  903.     *     *     * 


TAYLOR  et  al.  v.  LOUISVILLE  &  N.  R.  CO. 

(Circuit  Court  of  Appeals  of  United  States.   Sixth  Circuit.     1S9S.     88  Fed. 
350,  31  C.   C.  A.  537.) 

Bill  in  equity  against  Taylor,  Morgan,  and  Craig,  who  constitute 
the  board  of  equalization  of  the  state  of  Tennessee,  to  enjoin  them 
from  certifying  in  accordance  with  the  act  of  the  Legislature  of 
Tennessee  passed  April  5,  1897,  a  tax  valuation  upon  complainant's 
railroad  in  Tennessee,  to  be  apportioned  by  the  State  Comptroller 
to  the  thirty-five  counties,  cities,  and  towns  in  which  the  road  lies. 

Taft,  Circuit  Judge.-®  '^'  *  *  The  next  objection  to  the  as- 
sessment of  the  defendants,  and  the  most  serious,  is  that  they  have 
assessed  the  railroad  property  of  the  state,  including  that  of  com- 
plainant, at  its  real  value,  whereas  all  other  property  of  the  state  is 
habitually  and  intentionally  assessed  by  the  assessing  officers,  who 


Only  a  portion  of  the  opinion  is  printed. 


584  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

are  not  tlie  defendants,  at  not  exceeding  75  per  cent,  of  its  real  or 
correct  value.  We  think  it  clear,  from  the  provisions  of  the  rail- 
road assessment  act  of  1897,  that  neither  board  thereby  created  is 
charged  with  any  duty  to  equalize  the  taxable  value  of  real  estate 
with  that  of  railroad  property.  The  board  of  equalization  under  the 
act  of  1897  is  made  up  of  the  same  state  officers  who  composed  the 
state  board  of  examiners  under  the  prior  act,  and  they  were  charged 
with  the  duty  of  revising  the  assessment  of  railroads  made  by  the 
board  of  assessors  and  equalizers  created  by  the  act  of  1895  ;  but 
they  had  no  revisory  duty  connected  with  that  board's  equalization 
of  real  estate  throughout  the  state.  Hence  when,  in  1897,  the  board 
of  assessors  and  equalizers  was  abolished,  the  equalization  of  real 
estate  values  was  abolished.  The  continuation  of  the  state  board 
of  examiners  under  the  new  name  of  the  "Board  of  Equalization" 
could  have  no  effect  to  continue  in  force  provisions  of  law  as  to  state 
equalization  of  values  of  real  estate,  because  that  board  never  had 
any  duty  connected  with  the  assessment  of  real  estate  at  all.  It  is 
also  clear  that  the  act  of  1897  commands  the  two  boards  created,  by 
its  terms,  to  fix  the  correct  value  of  the  railroad  and  other  property 
which  they  assess.  This  means  the  real  value  of  the  property,  and  it 
is  conceded  that  the  laws  for  the  assessment  of  real  and  personal 
property  impose  on  the  assessing  officers  the  duty  of  assessing  it 
at  the  same  value. 

The  contention  for  the  complainant  is  that  the  undervaluation  of 
real  and  personal  property  is  intentional  and  systematic  throughout 
the  state,  and  is  in  accordance  with  an  immemorial  and  well-recog- 
nized custom ;  that,  combined  with  the  assessment  at  full  value  of  all 
railroad  property,  the  undervaluation  of  all  other  property  makes 
a  system  of  taxation  operating  to  impose  upon  complainant,  and  all 
others  holding  the  same  class  of  property,  a  grossly  unjust  share  of 
the  cost  of  the  state,  county,  and  city  governments ;  that  this  is  in 
violation  of  the  Constitution  of  the  state  of  Tennessee,  which  enjoins 
uniformity  of  taxation,  according  to  value,  on  all  property,  and  ex- 
pressly forbids  that  one  species  of  property  shall  be  taxed  higher 
than  any  other;  and  that  a  court  of  equity,  because  it  is  unable  to 
remedy  the  glaring  injustice  done  to  complainants  and  others  of  the 
same  class,  by  compelling  the  assessment  on  other  property  to  be 
raised  to  its  real  value,  may  accomplish  the  same  result  by  enjoining 
the  defendants  from  assessing  railroad  property  at  any  higher  per- 
centage than  that  at  which  other  property  in  the  state  is  assessed, 
although  this  is  a  departure  from  the  rule  of  action  prescribed  for 
them  in  the  statute  creating  them  a  taxing  board.  In  considering 
the  soundness  of  this  contention,  we  come  first  to  the  facts. 

We  find  from  the  evidence,  which  is  uncontradicted,  that  generally, 
in  the  state  of  Tennessee,  for  a  number  of  years,  the  assessors  and  the 
board  of  equalization  of  each  county  have  intended  to  assess,  and 
have  assessed,  real  and   personal  property  at   a  uniform   percentage 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL   CONTROL.  585 

less  than  its  real  value ;  that  this  percentage  is  not  uniform  between 
the  counties,  but  that  it  is  not  substantially  less  than  25  per  cent,  in 
any  of  them.  We  base  our  conclusion  on  150  affidavits  contained  in 
the  record.  They  do  not  cover  specifically  more  than  35  counties  out 
of  the  9G  counties  in  the  state ;  but  when  they  are  supplemented  by 
the  evidence  of  the  members  of  the  state  board  of  equalizers,  who 
officially  investigated  the  manner  of  making  assessments  in  each  coun- 
ty in  the  state  by  actual  visits  and  by  correspondence,  by  examining 
the  assessing  officers,  and  by  a  comparison  of  tax  values  with  actual 
sales,  we  have  no  difficulty  in  finding  the  fact  to  be  as  above  stated. 
The  affidavits  from  different  counties  are  many  of  them  the  sworn 
statements  of  the  assessors  and  county  equalizers  themselves,  who 
made  the  assessments,  and  leave  not  the  slightest  doubt  that  in  each 
;county  the  undervaluation  was  systematic,  was  according  to  a  uni- 
form and  well-understood  rule  of  reduction,  and  was  for  the  pur- 
pose of  reducing  the  proportionate  burden  of  the  expenses  of  the 
state  government  which  the  particular  county  would  have  to  bear. 
These  expenses  are,  in  effect,  apportioned  to  each  county  in  the  pro- 
portion which  its  total  tax  valuation  bears  to  the  total  tax  valuation 
of  all  the  property  in  the  state.  The  motive  for  undervaluation  is 
manifest,  and  the  variation  in  the  percentage,  as  between  the  coun- 
ties, is  dependent  only  on  the  varying  extremes  to  which  taxing  of- 
ficers of  different  counties  are  willing  to  go  in  departing  from  the 
statutory  rule  to  reduce  the  state  burden  on  their  respective  counties. 
We  further  find  that  in  the  year  1897,  which  is  one  of  the  years  in 
respect  to  which  relief  is  asked  in  the  bill,  the  assessment  of  real 
estate  which  was  not  affected  by  the  repeal  of  the  act  of  1895  was 
equalized  by  the  state  board  of  assessors  and  equalizers,  under  that 
act,  at  a  basis  of  75  per  cent,  of  its  real  value ;  that  this  was  done  in- 
tentionally, and  was  adopted  as  rule  of  action  by  that  board.  This 
is  established  by  the  evidence  of  two  of  the  three  members  of  the 
board,  and  of  the  secretary  of  the  board  :  and  although  there  is  a  dis- 
crepancy in  their  statements,  as  to  whether  the  basis  fixed  was  70  or 
75  per  cent,  (two  of  them  saying  that  it  was  70,  and  the  other  75),  the 
fact  that  they  deliberately  fixed  a  percentage  of  real  value  as  their 
basis  of  assessment  is  admitted  by  all  of  them. 

We  are  relieved  from  considering  the  weight  of  the  evidence  as 
to  the  exact  basis  by  the  averment  of  the  bill,  which  fixes  it  at  75 
per  cent.  The  assessed  value  of  real  and  personal  property,  except 
railroads  and  telegraph  lines,  in  Tennessee,  for  the  year  1897,  was, 
in  round  numbers,  $312,000,000.  The  value  of  railroads  and  tele- 
graph lines,  as  assessed  by  defendants,  was  $63,000,000 — an  increase 
of  the  assessed  value  of  the  year  before  of  $25,000,000.  This  makes 
a  total  tax  value  of  $375,000,000,  and  imposes  on  the  railroads  ^^/a-s, 
or  about  V*'  oi  the  entire  burden  of  the  state,  county,  and  municipal 
governments.  If  the  assessment  of  the  real  and  personal  property 
were  increased  to  actual  value,  it  would  be   $416,000,000,  and  the 


nSG  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

share  of  the  railroads  in  paying-  governmental  expenses  would  be  a 
little  less  than  ^/s  of  the  whole.  The  existence  of  this  glaring  in- 
equality no  evidence  has  been  introduced  to  contradict.  The  defend- 
ants have  been  content  to  deny  it  in  a  general  way  in  their  answer, 
and  have  adduced  no  testimony  upon  the  point  from  any  one  pro- 
fessing to  have  specific  knowledge  on  the  subject. 

The  Constitution  of  Tennessee,  adopted  in  1870  (article  2,  §  28) 
provides  that :  "All  property — real,  personal  and  mixed — shall  be 
taxed.  *  *  *  All  property  shall  be  taxed  according  to  its  value. 
that  value  to  be  ascertained  in  such  manner  as  the  Legislature  shall  di- 
rect, so  that  taxes  shall  be  equal  and  uniform  throughout  the  state. 
No  one  species  of  property  from  which  a  tax  may  be  collected  shall  be 
taxed  higher  than  any  other  species  of  property  of  the  same  value." 
*      *      >!< 

There  has  been  much  discussion  at  the  bar  upon  the  point  whether 
the  Constitution  of  1870  requires  that  all  property  shall  be  assessed 
at  its  full  value,  or  whether  it  would  satisfy  the  Constitution  if  the 
taxing  laws  required  all  property  to  be  assessed  for  taxation  at  a 
uniform  percentage — say  75  per  cent,  of  its  real  value.  Language 
lias  been  quoted  from  the  opinions  of  judges  of  the  Supreme  Court  of 
Tennessee  supporting  the  former  view,  but  they  were  obiter,  and 
wholly  unnecessary  to  the  decision  of  the  cases  before  the  court. 
Mayor,  etc.,  of  Chattanooga  v.  Nashville,  C.  &  St.  L.  R.  Co.,  7  Lea, 
569 ;  Brown  v.  Greer,  3  Head,  696.  Speaking  for  Judge  Lurton 
and  myself,  we  should  be  inclined  to  hold  that  any  legislative  system 
of  tax  assessment  of  property  based  on  a  uniform  percentage  of  its 
value  would  be  "according  to  its  value,"  and  would  be  a  compliance 
with  the  constitutional  mandate.  This  is,  we  think,  in  accordance 
with  the  latest  expression  from  the  Supreme  Court  of  Tennessee  in 
the  Reelfoot  Lake  Levee  District  Case,  already  quoted  [97  Tenn. 
151,  36  S.  W.  1041,  34  L.  R.  A.  725].  Judge  SeverEns  doubts,  and 
the  difference  is  not  material,  for  we  are  unanimously  of  opinion  that 
the  question  is  not  controlling  in  this  case.  The  Constitution  express- 
ly gives  the  Legislature  the  power  to  prescribe  that  all  property  shall 
be  assessed  at  its  true  value,  and  the  Legislature  has  done  so.  Such 
a  legislative  command  is  as  binding  on  those  whom  it  affects  as  if 
it  were  in  the  Constitution,  because  passed  in  pursuance  of  the  funda- 
mental law;  and  counsel  for  complainant  do  not  avoid  the  difificulty 
which  confronts  them  in  the  case,  to  wit,  that  they  are  seeking  to 
enjoin  defendants  from  doing  that  which  the  letter  of  the  law  re- 
quires the  defendants  to  do,  by  showing  that  the  requirement  is  in 
a  constitutionally  enacted  statute,  rather  than  in  the  Constitution  it- 
self. 

The  sole  and  manifest  purpose  of  the  Constitution  was  to  secure 
uniformity  and  equality  of  burden  upon  all  the  property  in  the  state. 
As  a  means  of  doing  so  (conceding  that  defendant's  construction 
is   the  correct  one),   it   provided   that   the   assessment   should   be  ac- 


Ch.  9)       JURISDICTION,  CON'CLUSIVENESS,  AND   JUDICIAL   CONTROL.  587 

cording  to  its  true  value.  It  emphasized  the  object  of  the  section  by 
expressly  providing  that  no  species  of  property  should  be  taxed  high- 
er than  any  other  species.  We  have  before  us  a  case  in  which  the 
complaining  taxpayer,  and  other  taxpayers  owning  the  same  species 
of  property,  are  taxed  at  a  higher  rate  than  the  owners  of  other  spe- 
cies of  property.  This  does  not  come  about  by  legislative  discrim- 
ination, but  by  the  intentional  and  systematic  disregard  of  the  law 
by  those  charged  with  the  duty  of  assessing  all  other  species  of  prop- 
erty than  that  owned  by  complainant  and  its  fellow^s  of  the  same 
class.  This  is  a  flagrant  violation  of  the  clause  of  the  Constitution 
forbidding  discrimination  in  taxation  between  different  species  of 
property.  That  clause  is  self-executing.  Reelfoot  Lake  Levee  Dist. 
v.  Dawson,  97  Tenn.  160,  36  S.  W.  1043,  34  L.  R.  A.  725.  How  is 
it  to  be  remedied?  It  is  said  on  behalf  of  the  defendants  that  the 
only  method  consistent  with  the  Constitution  is  by  raising  the  as- 
sessments of  the  real  and  personal  property.  This  is  no  remedy  at 
all.  It  has  been  suggested  (but  we  cannot  regard  the  suggestion  as 
a  serious  one)  that  the  railroad  companies  of  the  state  should  go 
l)efore  the  taxing  authorities  of  each  county,  and,  after  notifying 
each  taxpayer,  attempt  to  secure  an  increase  in  the  total  tax  assess- 
ment of  the  real  and  personal  property  of  the  state  from  $312,000,000 
to  $416,000,000.  The  absolute  futility  of  such  a  course,  the  enor- 
mous expense,  and  the  length  of  time  necessary  in  attempting  to 
follow  it,  need  no  comment. 

The  question  presented  is,  then,  whether,  when  the  sole  object 
of  an  article  of  the  Constitution  is  being  flagrantly  defeated,  to  the 
gross  pecuniary  injury  of  a  class  of  litigants,  and  one  of  them  ap- 
peals to  a  court  of  equity  for  relief,  it  must  be  withheld  because  the 
only  mode  of  granting  it  will  involve  an  apparent  departure  from 
the  method  marked  out  by  the  Constitution  and  the  law  for  attain- 
ing its  sole  object.  We  say  "apparent"  departure  from  the  consti- 
tutional method,  because  that  instrument  contemplated  a  system  in 
which  all  property  should  be  assessed  at  its  real  value.  It  did  not 
intend  that  a  large  part  should  be  assessed  at  75  per  cent.,  and  a 
smaller  part  at  100  per  cent.  The  method  of  assessing  one  species 
of  property  cannot  be  truly  said  to  be  constitutional,  without  hav- 
ing regard  to  that  pursued  with  other  species ;  for  the  essence  of 
the  constitutional  requirement  is  uniformity,  and  uniformity  cannot 
be  affirmed  to  exist  without  a  due  regard  to  the  methods  of  assessing 
all  species.  Therefore,  to  enjoin  the  enforcement  of  the  prescribed 
method  of  assessment  as  to  one  species  of  property,  when  there  is  a 
departure  from  it  as  to  all  others,  if  the  injunction  secures  uniformity 
as  to  all,  is  not  so  great  a  violation  of  the  method  really  prescribed 
as  that  involved  in  a  continuance  of  the  existing  conditions,  and  the 
denial  of  relief  to  the  injured  taxpayer.  The  court  is  placed  in  a 
dilemma,  from  which  it  can  only  escape  by  taking  that  path  which, 
while  it  involves  a  nominal  departure  from  the  letter  of  the  law,  does 


5S8  RELIEF   AGAINST   ADMINISTRATIVE   Af'TION.  (Part    2 

injury  to  no  one,  and  secures  that  uniformity  of  tax  burden  which 
was  the  sole  end  of  the  Constitution.  To  hold  otherwise  is  to  make 
the  restrictions  of  the  Constitution  instruments  for  defeating  the 
very  purpose  they  were  intended  to  subserve.  It  is  to  stick  in  the 
bark,  and  to  be  blind  to  the  substance  of  things.  It  is  to  sacrifice  jus- 
tice to  its  incident.  The  same  dilemma  has  been  presented  to  other 
courts.  They  have  not  always  taken  the  same  horn.  There  is  a 
conflict  of  authority,  but  we  are  glad  to  say  that  the  adjudications 
of  that  court  whose  decision  we  must  follow  support  the  views  we 
have  above  expressed.  Before  examining  the  cases  in  the  Supreme 
Court  of  the  United  States,  let  us  refer  to  the  decisions  of  some  of 
the   state   courts  upon   the   question : 

In  Randell  v.  City  of  Bridgeport,  6:]  Conn.  321,  28  Atl.  523,  the 
case  came  into  court  on  a  direct  appeal  from  the  action  of  a  board 
of  equalization,  called  tlie  "Board  of  Relief  of  the  City  of  Bridge- 
port." The  superior  court  found  as  a  fact  that  it  had  been  the  uni- 
form rule  of  the  board  of  assessors  and  the  board  of  relief  of  that 
city  to  value  all  property,  for  the  purpose  of  taxation,  at  one-half  of 
its  fair  market  value.  The  court  found  that  the  plaintiff's  property 
was  assessed  at  its  full  market  value  as  the  statute  required.  The 
Supreme  Court  held  that  the  complainant  was  entitled  to  an  as- 
sessment of  one-half  the  real  value  of  his  property,  and  this  in 
the  face  of  a  mandatory  provision  of  the  statute  that  all  property 
should  be  assessed  at   its  true  value.     "^     *     * 

In  Cocheco  Co.  v.  Strafford,  51  N.  H.  455,  the  law  provided  that 
•the  selectmen  should  appraise  all  taxable  property  at  its  full  and  true 
value  in  money.  The  statute  further  provided  that  the  court  should 
make  such  order  thereon  as  justice  required.  Mr.  Justice  Doe,  upon 
this  point,  in  a  concurring  opinion,  said :  ''Justice  requires  an  equal 
rate  of  taxation  of  Strafford  real  estate.  If  the  Strafford  real  estate  of 
others  was  appraised  in  1870  at  a  less  rate  than  its  full  value,  the 
real  estate  of  the  plaintiffs  should  be  appraised  by  the  commissioners 
at  the  same  rate,  so  that  the  plaintiffs  shall  pay  their  proportion  of 
tax  and  no  more.  The  usual  rate  in  farming  towns  is  well  under- 
stood, and  the  practice  of  undervaluation  is  so  universal  as  to  raise 
a  presumption  of  fact  that  it  prevails  in  Strafford.  When  the  com- 
missioners have  ascertained  the  fact  of  the  full  value  of  the  plain- 
tiffs' Strafford  real  estate  on  the  1st  day  of  April,  1870,  they  should 
proceed  further,  and  appraise  it  at  its  value  as  compared  with  the 
value  at  which  other  Strafford  real  estate  was  appraised  by  the  se- 
lectmen in  1870.  This  comparative  value  is  the  only  question  which 
the  commissioners  are  appointed  to  decide,  and  is  a  pure  question 
of  fact." 

This  language  was  approved  in  Manchester  Mills  v.  Manchester,  58 
N.  H.  38,  on  a  petition  for  the  abatement  of  the  real  estate  tax, 
in  which  the  court  appointed  a  committee  to  find  and  report — 
First,  the  true  value  of  the  plaintiff's  estate;    and,  second,  the  true 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL   CONTROL.         589 

value  of  real  estate  of  Manchester,  other  than  plaintiff's  compared 
with  its  assessed  value.  The  question  whether  the  second  point  was 
a  proper  subject  for  inquiry  came  before  the  court,  and  it  was  held 
that  it  was  a  proper  subject  of  inquiry,  and  that  the  abatement 
should  proceed  on  the  findings  made  upon  such  inquiry. 

[The  opinion  then  cites,  and  quotes  from,  Ex  parte  Ft.  Smith  & 
Van  Buren  Bridge  Co.,  63  Ark.  461,  36  S.  W.  1060.  This  part  of  the 
opinion  is  omitted.] 

In  the  case  of  Board  of  Sup'rs  of  Bureau  Co.  v.  Chicago,  B.  &  Q. 
R.  Co.,  44  111.  229,  the  appeal  was  a  direct  appeal  from  the  board  of 
supervisors,  which  assessed  the  value  of  the  property  of  the  railroad 
company.  It  appeared  that  the  valuation  of  property  of  individuals, 
except  that  of  the  railroad  company  ranged  from  one-fifth  to  one- 
third,  while  that  of  the  railroad  company  ranged  from  one-third  to 
one-half  ;  and  the  appellate  court  decided  that  the  assessment  of  the 
railroad  property  must  be  at  the  same  percentage  of  the  real  value 
as  that  of  individuals.  The  Constitution  of  Illinois  required  the  gen- 
eral assembly  to  provide  for  levying  a  tax  by  valuation,  so  that 
every  person  and  corporation  shall  pay  a  tax  in  proportion  to  the 
value  of  his  or  her  property;  such  value  to  be  ascertained  by  some 
person  or  persons  to  be  elected  or  appointed  in  such  manner  as  the 
general  assembly  shall  direct,  and  not  otherwise.  The  act  to  carry 
out  this  section  provided  that  each  separate  parcel  should  be  val- 
ued at  its  true  value  in  money.  The  court  held  that  it  was  the 
duty  of  the  supervisors  to  impose  the  same  percentage  of  assess- 
ment upon  the  railroad  company  as  had  been  assessed  by  the  as- 
sessors upon  the  property  of  individuals. 

[The  opinion  then  cites  and  quotes  from  Chicago,  B.  &  O.  R.  Co.  v. 
Board  of  Com'rs  of  Atchison  Co.,  54  Kan.  781,  39  Pac.  1039.  This 
part  of  the  opinion  is  omitted.] 

As  has  already  been  said,  there  are  cases  in  which  the  other  horn 
of  the  dilemma  has  been  taken,  the  injustice  to  the  complaining  class 
of  taxpayers  has  been  allowed  to  continue,  and  the  violation  of  con- 
stitutional or  statutory  uniformity  and  equality  has  gone  on  un- 
hindered, in  order,  that  the  letter  of  the  law  may  be  preserved  while 
its  spirit  is  flagrantly  broken.  Wagoner  v.  Loomis,  37  Ohio  St.  571 ; 
Central  R.  Co.  v.  State  Board  of  Assessors,  48  N.  J.  Law,  1,  2  Atl. 
789,  57  Am.  Rep.  516.  See,  also.  City  of  Lowell  v.  County  Com'rs, 
152  Mass.  372,  25  N.  E.  469. 

We  are  relieved  from  a  further  discussion  of  the  question  by  the 
decision  of  the  Supreme  Court  of  the  United  States  in  the  case  of 
Cummings  v.  Bank,  101  U.  S.  153,  25  L.  Ed.  903.  In  that  case  the 
assessors  of  real  property,  the  assessors  of  personal  property,  and  the 
county  auditor  (who  was  the  assessing  officer  of  the  first  instance  for 
bank  shares)  of  the  county  where  the  complainant  bank  was  situated 
agreed  to  assess  real  and  personal  property  at  one-third  its  value,  and 
money  or  invested  capital  at  six-tenths  its  value.     This  agreement 


590  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

was  in  violation  of  the  statutes  under  which  they  were  acting-,  which 
required  assessments  to  be  at  the  true  vahie  in  money.  The  state 
board  of  equahzation  for  banks  increased  the  assessment  of  com- 
plainant's bank  shares  to  their  full  market  value.  The  state  board 
had  no  power  to  equalize  bank  shares  with  real  or  personal  prop- 
erty, and,  in  assessing-  these  bank  shares  at  their  full  value,  it  was 
following  the  exact  course  prescribed  by  statute,  and  the  statute  was 
passed  in  accordance  with  the  Constitution  of  Ohio,  which  requires 
the  Legislature  to  pass  laws  taxing  all  property  "by  uniform  rule  at 
its  true  value  in  money."  This  action  was  brought  by  the  complain- 
ant bank  to  enjoin  the  county  treasurer  from  collecting  the  tax  on 
the  assessment  against  its  shares  which  had  been  certified  down  by 
the  state  board  of  assessors.  The  Circuit  Court  of  the  United  States 
enjoined  the  treasurer  from  collecting  tax  on  a  valuation  greater 
than  one-third  of  the  real  value  of  the  shares.  The  effect  of  this 
order  was  to  annul  an  assessment  by  the  state  board  of  equalization 
which  was  strictly  in  accordance  with  the  letter  of  the  statute  gov- 
erning it  in  the  discharge  of  its  duties,  and  which  was  equally  in 
accord  with  the  standard  of  value  for  assessment  fixed  by  the  Con- 
stitution of  the  state.  The  decree  of  tl-i-  Circuit  Court  was  affirmed 
by  the  Supreme  Court  on  the  principle  stated  by  the  court  as  follows : 
''When  a  rule  or  system  of  valuation  is  adopted,  by  those  whose  duty 
it  is  to  make  the  assessment,  which  is  designed  to  operate  unequally,  and 
to  violate  a  fundamental  principle  of  the  Constitution,  and  when  the 
rule  is  applied,  not  solely  to  one  individual,  but  to  a  large  class  of 
individuals  or  corporations,  [that]  equity  may  properly  interfere  to  re- 
strain the  operation  of  this  unconstitutional  exercise  of  power."  *  *  * 
The  justice  [Mr.  Justice  Miller]  discussed  the  facts,  to  show 
that  the  laws  had  been  unfaithfully  administered  by  those  charged 
with  their  execution,  and  that  as  the  only  method  provided  in  the 
system  by  which  constitutional  uniformity  was  to  be  secured,  namely, 
by  taxing  all  property  at  its  true  value  in  money,  though  required  by 
statute,  had  been  departed  from  by  the  administrators  of  the  law  in 
assessing  other  classes  of  property  than  that  held  by  the  complainant, 
equity  might  relieve  complainant  from  his  unequal  burden  thus  placed 
on  him  by  enjoining  taxation  on  more  than  one-third  of  the  assess- 
ment against  him,  though  his  property  had  been  only  taxed  at  its 
true  value.  After  commenting  on  the  widespread  custom  or  rule  in 
many  states  to  undervalue  real  estate,  growing  out  of  the  effort  of 
the  landowner  to  produce  something  like  equality  of  burden  with 
personal  property  which  escapes  taxation  by  being  hidden,  the  jus- 
tice concluded :  "But  whatever  may  be  its  cause,  when  it  is  recognized 
as  the  source  of  manifest  injustice  to  a  large  class  of  property,  around 
which  the  Constitution  of  the  state  has  thrown  the  protection  of 
uniformity  of  taxation  and  equality  of  burden,  the  rule  must  be  held 
void,  and  the  injustice  produced  under  it  must  be  remedied,  so  far 
as  the  judicial  power  can  give  remedy." 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND   JUDICIAL   CONTUOL.  591 

The  case  before  us  cannot  in  any  material  respect  be  distini^uishcd 
from  the  Cummings  Case.  In  this  case,  as  in  that,  the  injunction 
sought  is  against  the  enforcement  of  an  assessment  upon  complain- 
ant's property  which  was  made  at  the  true  value  of  the  property, 
in  accordance  with  the  mandate  of  the  Constitution  and  statute,  by 
assessing-  officers  who  had  not  themselves  discriminated  against  com- 
plainant's property  by  undervaluing  other  species  of  property,  and 
who  were  not  themselves  guilty  of  any  fraud.  In  this  case,  as  in 
that,  the  unjust  operation  of  the  assessment  grows  out  of  the  sys- 
tematic and  intentional  undervaluation  of  other  species  of  property 
by  assessors  who  are  not  responsible  for  the  assessment  complained 
of.  In  this  case,  as  in  that,  the  eiifect  of  the  injunction  is  to  compel 
certain  assessors  of  the  state  to  reduce  their  assessment  to  the  illegal 
standard  of  valuation  adopted  by  different  and  unfaithful  assessors 
of  other  species  of  property,  and  is  justified  by  the  result  that  in 
this  way  is  secured  something  like  the  uniformity  which  is  the  sole 
purpose  of  the  Constitution.  It  has  been  pressed  upon  us  that  no 
such  preconcert  of  action  by  the  assessing  officers,  and  no  such  uni- 
form rule  Df  undervaluation,  have  been  shown  in  this  case  as  ap- 
peared in  the  Cummings  Case,  and  that  upon  these  circumstances 
the  Cummings  Case  turned.  We  have  already  found,  from  the  evi- 
dence, that  there  is  an  intentional  undervaluation  of  .property  in 
each  county,  and  that  this  is  uniform  as  to  all  real  and  personal 
property,  and  results  from  a  clear  understanding  between  the  as- 
sessors and  county  boards  of  equalization,  who  have  a  common  mo- 
tive for  the  reduction.  ]\Iore  than  this,  it  is  clearly  shown  that  the 
state  board  of  assessors  and  equalizers  in  1896  intentionally  equal- 
ized all  real  estate  in  the  state  at  75  per  cent,  of  its  true  value  for 
the  taxation  of  the  year  1897.  Could  preconcert  be  clearer  than 
this? 

It  is  further  said  that,  before  the  remedy  pursued  in  the  Cummings 
Case  can  become  applicable,  it  must  appear  that  the  undervaluation 
of  one  species  of  property  was  adopted  as  a  rule  of  action  by  the 
assessors  for  the  fraudulent  purpose  of  discriminating  against  the 
complaining  taxpayer  and  his  class,  and  th^t  no  such  case  is  presented 
to  this  court.  Now,  it  is  true  that,  before  equity  will  relieve  in 
such  a  case,  it  must  appear  that  the  assessing  officers  whose  acts 
of  undervaluation  create  the  unjust  burden  must  intentionally  and 
habitually  violate  the  law,  by  assessing  property  at  a  less  valua- 
tion than  that  which  they  know  to  be  its  true  value ;  but  it  is  not 
true  that  they  must  be  shown  affirmatively  to  intend  to  injure  com- 
plainant and  his  class  of  taxpayers  in  so  doing.  It  is  true  that  in 
the  Cummings  Case  the  unfaithful  assessors,  or  some  of  them, 
did  undervalue  both  real  and  personal  property,  and  money  capital, 
in  which  were  included  bank  shares,  at  different  percentages  of  their 
true  value;  but  the  assessment  of  which  complaint  was  made  was 
not  the  work  of  these  assessors  at  all,  but,  as  here,  of  a  state  board 


oU'2  KELirOP   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

of  equalization.  An  intentional  undervaluation  of  a  large  class  of 
])ro])erty,  when  the  law  enjoins  assessment  at  true  value,  is  neces- 
sarily designed  to  operate  unequally  upon  other  classes  of  property 
to  be  assessed  by  other  taxing  tribunals,  who,  it  may  be  presumed, 
will  conform  to  the  law.  In  the  case  at  bar  the  county  assessors 
and  board  of  equalization  of  each  county  have  been  actuated  in  their 
violations  of  the  law  by  the  desire  to  reduce,  as  far  as  may  be,  their 
county's  share  of  the.  state  burdens.  Their  undervaluations  of  prop- 
erty have  been  uniform  as  to  all  property  in  their  county  but  rail- 
roads. They  could  not  but  know  that  such  undervaluation  must 
work  an  injustice  against  the  property  of  railroads,  if  assessed  at 
its  true  value  by  a  state  board,  and  taxed  for  county  and  state  pur- 
poses on  that  basis.  In  this  sense,  the  rule  of  undervaluations  adopt- 
ed in  each  county  is  necessarily  "designed  to  operate  unequally," 
within  the  meaning  of  Mr.  Justice  Miller  in  the  Cummings  Case. 
The  ratio  decidendi  of  that  case  is  to  be  gathered  from  the  facts,  and 
the  language  of  the  opinion  is  to  be  interpreted  in  the  view  of  the 
facts.  The  case  has  been  commented  on  by  the  Supreme  Court  in  a 
number  of  subsequent  cases,  but  it  has  never  been  modified  or  over- 
ruled. 

[The  court  then  cites  and  quotes  from  Bank  v.  Kimball,  103  U. 
S.  732,  26  L.  Ed.  469,  Supervisors  v.  Stanley,  105  U.  S.  305,  26 
L.  Ed.  1044,  Stanley  v.  Supervisors,  121  U.  S.  550,  7  Sup.  Ct.  1234, 
30  L.  Ed.  1000,  and  Bank  v.  Perea,  147  U.  S.  87,  13  Sup.  Ct.  194,  37 
L.  Ed.  91.] 

We  find  nothing  in  these  cases  which  should  change  our  view,  al- 
ready expressed,  of  the  efifect  of  the  Cummings  Case.  They  merely 
emphasize  the  point  that  equity  will  not  relieve  against  an  assess- 
ment merely  because  it  happens  to  be  at  a  higher  rate  than  that 
of  other  property ;  that  such  inequalities,  due  to  mistake,  to  the 
fallibility  of  human  judgment,  or  to  other  accidental  causes,  must 
Ije  borne,  for  the  reason  that  absolute  uniformity  cannot  be  obtain- 
ed ;  that,  in  other  words,  what  may  be  called  "sporadic  cases  of  dis- 
crimination" cannot  be  remedied  by  the  chancellor.  He  can  only 
interfere  when  it  is  made  clear  that  there  is,  with  respect  to  certain 
species  of  property,  systematic,  intentional,  and  unlawful  underval- 
uations for  taxation  by  the  taxing  officers,  which  necessarily  effect 
an  unjust  discrimination  against  the  species  of  property  of  which 
the  complainant  is  an  owner.  The  reason  for  the  distinction  is  ob- 
vious. The  occasional  and  accidental  discriminations  are  inevitable 
in  every  assessment,  and  are  not  likely  to  continue,  because  not  the 
result  of  an  illegal  purpose  on  the  part  of  any  one.  If  equitable  in- 
terference in  such  cases  could  be  invoked,  the  obstruction  to  the 
collection  of  taxes  would  be  so  frequent  as  to  be  intolerable.  More 
than  this,  an  action  to  enjoin  a  tax  is  a  collateral  attack  upon  the 
judgment  of  a  quasi  judicial  tribunal;  and  it  cannot  be  justified  ex- 
cept on  the   ground  of  an  obvious  violation  of   law,   or   something 


Ch.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL  CONTROL.         593 

equivalent  to  fraud.  It  does  not  lie  where  the  injury  complained 
of  arises  only  from  the  erroneous,  but  honest,  judgment  of  the  law- 
fully constituted  tax  tribunal. 

The  interference  by  the  chancellor  in  the  case  at  bar  and  in  the  Cum- 
mings  Case  rests  on  something  equivalent  to  fraud  in  the  tribunal  im- 
posing the  tax.  The  various  boards  whose  united  action  is  by  law 
intended  to  effect  a  uniform  assessment  on  all  classes  of  property  are 
'to  be  regarded  as  one  tribunal,  and  the  whole  assessment  on  all  classes 
of  property  is  to  be  regarded  as  one  judgment.  If  any  board  which 
is  an  essential  part  of  the  taxing  system  intentionally,  and  therefore 
fraudulently,  violates  the  law,  by  uniformly  undervaluing  certain  classes 
of  property,  the  assessment  by  other  boards  of  other  classes  of  property 
at  the  full  value,  though  a  literal  compliance  with  the  law,  makes  the 
whole  assessment,  considered  as  one  judgment,  a  fraud  upon  the  fully- 
assessed  property.  And  this  is  true  although  the  particular  board  as- 
sessing the  complainant's  property  may  have  been  wholly  free  from 
fault  of  fraud  or  intentional  discrimination.  Therefore  the  injunction 
might  issue  against  the  assessment  upon  the  fully-assessed  property, 
as  void  altogether,  until  a  new  and  uniform  assessment  upon  all  prop- 
erty according  to  law  could  be  made.  And  such  is  the  rule  in  some 
courts.  Weeks  v.  Milwaukee,  10  Wis.  263 ;  Hersey  v.  Board,  16  Wis. 
192,  82  Am.  Dec.  713 ;  Smith  v.  Smith,  19  Wis.  619,  88  Am.  Dec.  707. 
The  inequity  of  allowing  the  taxpayer  to  escape  altogether,  and  the 
intolerable  inconvenience  to  the  public  in  the  delay  incident  to  such 
a  course,  however,  lead  a  court  of  equity  to  shape  its  order  so  as  to 
allow  only  so  much  of  the  fraudulent  judgment  to  be  enforced  against 
'the  complainant  as  may  be  done  without  imposing  on  him  any  in- 
equality of  tax  burden. 

We  reach  the  conclusion,  therefore,  that  the  Circuit  Court  was  right 
in  enjoining  the  unjust,  unequal,  and  (in  the  sense  already  explained) 
fraudulent  assessment  against  the  complainant ;  but  we  think  the  order 
should  have  required,  as  a  condition  of  the  issuing  of  the  injunction, 
•that  the  complainant  should  pay  to  the  proper  officers  a  tax  upon  the 
75  per  cent,  of  the  assessment  made  by  defendants.  The  evidence, 
taken  with  the  averments  of  the  bill,  does  not  establish  that  the  discrim- 
ination against  the  complainant's  property  really  exceeds  this.  The 
condition  imposed  by  the  Circuit  Court  was  the  payment  of  the  taxes  on 
the  assessment  for  1897  by  the  state  board  of  assessors  and  equalizers. 
That  assessment,  as  we  have  found,  was  annulled  by  the  act  of  1897. 

The  order  of  the  court  is  that  the  order  of  injunction  be  modified 
as  above  stated,  and  that,  as  thus  modified,  it  be  affirmed,  at  the  costs 
of  the  appellants. ^^ 

2  7  other  cases  in  this  collection  illustrating:  the  appeal  to  the  courts  for 

relief  against  administrative  action  in  the  matter  of  taxation  and  revenue: 

Action  against  officer:     Stetson  v.   Kempton,  13  Mass.  272,   7  Am.   Dec.  145 

(1816) ;    Easton  v.  Calendar,  11  Wend.  (N.  Y.)  90  (1S33) ;    Chegaray  v.  Jen- 

Fe  .  Adm  .  Law — 38 


)94  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

SECTION   75.— RAILROAD   RATE  REGULATION 


CHICAGO,  yi.  &  ST.  P.  RY.  CO.  v.  STATE  OF  MINNESOTA 
ex   rel.   RAILROAD   &   WAREHOUSE   COMMISSION. 

(Supreme  Court  of  United  States.  3  890.     134  U.  S.  418,  10  Sup.  Ct.  4G2,  .33  L. 
Ed.  970.) 

Writ  of  error  to  review  a  judgment  of  the  Supreme  Court  of  the 
state  of  Minnesota  awarding  a  writ  of  mandamus  against  the  Chi- 
cago, Milwaukee  &  St.  Paul  Railway  Company. 

BlatchFord,  J.-®  The  opinion  of  the  Supreme  Court  is  reported 
in  38  Minn.  281,  37  N.  W.  782.  In  it  the  court,  in  the  first  place,  con- 
strued the  statute  on  the  question  as  to  whether  the  court  itself  had 
jurisdiction  to  entertain  the  proceeding,  and  held  that  it  had.  Of 
course,  we  cannot  review  this  decision. 

It  next  proceeded  to  consider  the  question  as  to  the  nature  and 
extent  of  the  powers  granted  to  the  commission  by  the  statute  in 
'the  matter  of  fixing  the  rates  of  charges.  On  that  subject  it  said: 
"It  seems  to  us  that,  if  language  means  anything,  it  is  perfectly 
evident  that  the  expressed  intention  of  the  Legislature  is  that  the 
rates  recommended  and  published  by  the  commission,  assuming  that 
they  have  proceeded  in  the  manner  pointed  out  by  the  act,  should 
be  not  simply  advisory,  nor  merely  prima  facie  equal  and  reasonable, 
but  final  and  conclusive  as  to  what  are  lawful  or  equal  and  reasona- 
ble charges ;  that,  in  proceedings  to  compel  compliance  with  the 
rates  thus  published,  the  law  neither  contemplates  nor  allows  any 
issue  to  be  made  or  inquiry  had  as  to  their  equality  and  reasonable- 
ness in  fact.  Under  the  provisions  of  the  act,  the  rates  thus  pub- 
lished are  the  only  ones  that  are  lawful,  and  therefore,  in  contempla- 
tion of  law,  the  only  ones  that  are  equal  and  reasonable ;  and  hence, 
in  proceedings  like  the  present,  there  is,  as  said  before,  no  fact  to 

kins,  5  N.  Y.  376  (ISol) ;  Tracy  v.  Swartwout,  10  Pet.  80,  9  L.  Ed.  354 
(1836)  ;  Elliott  v.  Swartwout,  10  Pet.  137,  9  L.  Ed.  373  (1&36) ;  Gary  v.  Cur- 
tis, 3  How.  236,  11  L.  Ed.  576  (lS4.j) ;  action  against  municipality:  Lincoln 
V.  Worcester,  8  Cash.  (JNIass.)  55  (1851) ;  Falls  v.  Cairo,  58  111.  403  (1871) ; 
.Etna  Insur.  Co.  v.  Mayor.  153  N.  Y.  331,  47  N.  E.  593  (1897);  Dooley  v. 
United  States.  182  U.  S.  222,  21  Sup.  Ct.  762,  45  L.  Ed.  1074  (1901)  :  cer- 
tiorari: People  V.  Board  of  Assessors,  89  N.  Y.  81  (1808) ;  People  ex  re!.  Del. 
&  H.  Canal  Co.  v.  Parker,  117  N.  Y.  86,  22  N.  E.  752  (1889)  ;  Tomlinson  v. 
Board  of  Equalization,  88  Tenn.  1,  12  S.  W.  414,  6  L.  R.  A.  207  (1889) ;  in- 
junction: Cleveland,  etc.,  R.  Co.  v.  Backus,  154  U.  S.  439.  14  Sup.  Ct.  1122. 
38  L.  Ed.  1041  (1894) ;  Pittsburgh,  etc.,  R.  Co.  v.  Board  of  Public  Works,  172 
U.  S.  32,  19  Sup.  Ct.  90.  43  L.  Ed.  354  (1898)  ;  Huling  v.  Ehricli,  183  111.  315. 
55  N.  E.  630  (1899) ;  defense  against  enforcement:  Hagar  v.  Reclamation 
District,  111  U.  S.  701,  4  Sup.  Ct.  663,  28  E.  Ed.  569  (1884);  appeal:  Bureau 
County  V.  C,  B.  &  Q.  R.  Co.,  44  111.  229  (1867). 

2  8  Only  a  portion  of  the  opinion  of  Blatchford,  J.,  is  printed. 


Ch.  9)       JUIUSDICTIOX,  COXCLUSIVEXESS,  AND   JUDICIAL   CONTROL,  595 

traverse,  except  the  violation  of  the  law  in  refiisint^  compliance  with 
;the  recommendations  of  the  commission.  Indeed,  the  lanj^uage  of 
the  act  is  so  plain  on  that  point  that  argument  can  add  nothing  to 
its  force." 

It  then  proceeded  to  examine  the  c|uestion  of  the  validity  of  the 
act  under  the  Constitution  of  Minnesota,  as  to  whether  the  Legis- 
lature was  authorized  to  confer  upon  the  commission  the  powers 
given  to  the  latter  by  the  statute.  It  held  that  as  the  Legislature  had 
the  power  itself  to  regulate  charges  by  railroads,  it  could  delegate 
to  a  commission  the  power  of  fixing  such  charges,  and  could  make 
the  judgment  or  determination  of  the  commission  as  to  what  were 
reasonable   charges  final  and  conclusive.     *     *     "■ 

The  construction  put  upon  the  statute  by  the  Supreme  Court  of 
Minnesota  must  be  accepted  by  this  court,  for  the  purposes  of  the 
present  case,  as  conclusive,  and  not  to  be  re-examined  here  as  to 
its  propriety  or  accuracy.  The  Supreme  Court  authoritatively  de- 
clares that  it  is  the  expressed  intention  of  the  Legislature  of  Min- 
nesota, by  the  statute,  that  the  rates  recommended  and  published  by 
the  commission,  if  it  proceeds  in  the  manner  pointed  out  by  the 
act,  are  not  simply  advisory,  nor  merely  prima  facie  equal  and  rea- 
sonable, but  final  and  conclusive  as  to  what  are  equal  and  reasonable 
charges ;  that  the  law  neither  contemplates  nor  allows  any  issue 
to  be  made  or  inquiry  to  be  had  as  to  their  equality  or  reasonable- 
ness in  fact ;  that,  under  the  statute,  the  rates  published  by  the 
.commission  are  the  only  ones  that  are  lawful,  and  therefore,  in  con- 
templation of  law,  the  only  ones  that  are  equal  and  reasonable ;  and 
that,  in  a  proceeding  for  a  mandamus  under  the  statute,  there  is 
no  fact  to  traverse  except  the  violation  of  law  in  not  complying  with 
the  recommendations  of  the  commission.  In  other  words,  although 
.the  railroad  company-"  is  forbidden  to  estabUsh  rates  that  are  not 
equal  and  reasonable,  there  is  no  power  in  the  courts  to  stay  the 
hands  of  the  commission,  if  it  choses  to  establish  rates  that  are  un- 
equal and  unreasonable. 

This  being  the  construction  of  the  statute  by  which  we  are  bound 
in  considering  the  present  case,  we  are  of  opinion  that,  so  construed, 
it  conflicts  with  the  Constitution  of  United  States  in  the  particulars 
complained  of  by  the  railroad  company.  It  deprives  the  company 
of  its  right  to  a  judicial  investigation,  by  due  process  of  law,  under 
the  forms  and  with  the  machinery  provided  by  the  wisdom  of  suc- 
cessive ages  for  the  investigation  judicially  of  the  truth  of  a  matter 
in  controversy,  and  substitutes  therefor,  as  an  absolute  finality,  the 
action  of  a  railroad  commission  which,  in  view  of  the  powers  con- 
ceded to  it  by  the  state  court,  cannot  be  regarded  as  clothed  with 
judicial  functions,  or  possessing  the  machinery  of  a  court  of  jus- 
tice. 

2  9  (Sic?)   should  be  "commissiou." 


59G  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

Under  section  8  of  the  statute,  which  the  Supreme  Court  of  Min- 
nesota says  is  the  only  one  which  relates  to  the  matter  of  the  fixing 
by  the  commission  of  general  schedules  of  rates,  and  which  section, 
it  says,  fully  and  exclusively  provides  for  that  subject,^*'  and  is 
■complete  in  itself,  all  that  the  commission  is  required  to  do  is,  on 
the  filing  with  it  by  a  railroad  company  of  copies  of  its  schedules 
of  charges,  to  "find"  that  any  part  thereof  is  in  any  respect  unequal 
or  unreasonable,  and  then  it  is  authorized  and  directed  to  compel 
the  company  to  change  the  same,  and  adopt  such  charge  as  the  com- 
mission "shall  declare  to  be  equal  and  reasonable" ;  and  to  that 
end  it  is  required  to  inform  the  company  in  writing  in  what  respect 
its  charges  are  unequal  and  unreasonable.  No  hearing  is  provided 
for;  no  summons  or  notice  to  the  company  before  the  commission 
has  found  what  it  is  to  find,  and  declared  what  it  is  to  declare;  no 
opportunity  provided  for  the  company  to  introduce  witnesses  be- 
fore the  commission — in  fact,  nothing  which  has  the  semblance  of 
due  process  of  law;  and  although,  in  the  present  case,  it  appears 
that,  prior  to  the  decision  of  the  commission,  the  company  appeared 
before  it  by  its  agent,  and  the  commission  investigated  the  rates 
charged  by  the  company  for  transporting  milk,  yet  it  does  not  appear 
what  the  character  of  the  investigation  was,  or  how  the  result  was 
arrived  at. 

By  the  second  section  of  the  statute  in  question,  it  is  provided 
that  all  charges  made  by  a  common  carrier  for  the  transportation  of 
passengers  or  property  shall  be  equal  and  reasonable.  Under  this 
provision,  the  carrier  has  a  right  to  make  equal  and  reasonable  char- 
ges for  such  transportation.  In  the  present  case,  the  return  alleged 
that  the  rate  of  charge  fixed  by  the  commission  was  not  equal  or  rea- 
sonable, and  the  Supreme  Court  held  that  the  statute  deprived  the 
company  of  the  right  to  show  that  judicially.  The  question  of  the 
reasonableness  of  a  rate  of  charge  for  transportation  by  a  railroad 
.company,  involving,  as  it  does,  the  element  of  reasonableness  both 
as  regards  the  company  and  as  regards  the  public,  is  eminently  a 
question  for  judicial  investigation,  requiring  due  process  of  law  for 
its  determination.  If  the  company  is  deprived  of  the  power  of  charg- 
ing reasonable  rates  for  the  use  of  its  property,  and  such  depriva- 

3  0  Section  9  (f)  of  the  act  of  Minnesota  (Laws  1887,  c.  10)  provided:  "Said 
commission  may  from  time  to  time  make  or  amend  sucli  general  rules  or 
orders  as  may  be  requisite  for  the  order  and  regulation  of  proceedings  be- 
fore it,  ineludings  forms  of  notices  and  service  thereof,  which  shall  conform 
as  nearly  as  may  be  to  those  in  use  in  the  courts  of  this  state.  Any  party 
may  appear  before  said  commission  and  be  heard  in  person  or  by  attorney." 

The  opinion  delivered  by  the  Supreme  Court  of  Minnesota  (State  v.  Chi- 
cago, M.  &  St.  P.  Ry.  Co.,  38  Minn.  281,  37  N.  W.  782  [1888])  made  no  refer- 
ence to  this  provision. 

The  Supreme  Court  of  the  United  States,  in  San  Diego  Land  &  Town  Co. 
V.  National  City,  174  U.  S.  749,  19  Sup.  Ct.  804,  43  L.  Ed.  1154  (1899),  said: 
"Observe  that  this  court  based  its  interpretation  of  the  statute  of  Minnesota 
upon  the  construction  given  to  it  by  the  Supreme  Court  of  that  state." 


Ch.  9)      JURISDICTION,  CONCLUSIVEXESS,  AND  JUDICIAL  CONTROL.  597 

tion  takes  place  in  the  absence  of  an  investigation  by  judicial  ma- 
chinery, it  is  deprived  of  the  lawful  use  of  its  property,  and  thus, 
in  substance  and  efifect,  of  the  property  itself,  without  due  process 
of  law,  and  in  violation  of  the  Constitution  of  the  United  States; 
and,  in  so  far  as  it  is  thus  deprived,  while  other  persons  are  permit- 
ted to  receive  reasonable  profits  upon  their  invested  capital,  the  com- 
pany is  deprived  of  the  equal  protection  of  the  laws. 

It  is  provided  by  section  4  of  article  10  of  the  Constitution  of 
^Minnesota  of  1857,  that  "lands  may  be  taken  for  public  way,  for 
the  purpose  of  granting  to  any  corporation  the  franchise  of  way 
for  public  use,"  and  that  "all  corporations,  being  common  carriers, 
enjoying  the  right  of  way  in  pursuance  to  the  provisions  of  this 
section,  shall  be  bound  to  carry  the  mineral,  agricultural,  and  other 
productions  and  manufactures  on  equal  and  reasonable  terms."  It 
is  thus  perceived  that  the  provision  of  section  2  of  the  statute  in 
question  is  one  enacted  in  conformity  with  the  Constitution  of  ]\Iin- 
nesota. 

The  issuing  of  the  peremptory  writ  of  mandamus  in  this  case  was, 
therefore,  unlawful,  because  in  violation  of  the  Constitution  of  the 
United  States;  and  it  is  necessary  that  the  relief  administered  in  fa- 
vor of  the  plaintiff  in  error  should  be  a  reversal  of  the  judgment  of 
•the  Supreme  Court  awarding  that  writ,  and  an  instruction  for  further 
proceedings  by  it  not  inconsistent  with  the  opinion  of  this  court. 

In  view  of  the  opinion  dehvered  by  that  court,  it  may  be  impossible 
for  any  further  proceedings  to  be  taken  other  than  to  dismiss  the  pro- 
ceeding for  a  mandamus,  if  the  court  should  adhere  to  its  opinion  that, 
under  the  statute,  it  cannot  investigate  judicially  the  reasonableness  of 
the  rates  fixed  by  the  commission.  Still,  the  question  will  be  open  for 
review;  and  the  judgment  of  this  court  is  that  the  judgment  of  the 
Supreme  Court  of  IMinnesota,  entered  May  4,  1888,  awarding  a  per- 
emptory writ  of  mandamus  in  this  case,  be  reversed,  and  the  case  be 
remanded  to  that  court,  with  an  instruction  for  further  proceedings  not 
inconsistent  with  the  opinion  of  this  court. 

Bradley,  Gray,  and  Lamar,  J  J.,  dissent.^  ^ 


INTERSTATE  COMMERCE  COMMISSION  v.  ALABAMA  ^IID- 
LAND  RY.  CO. 

(Supreme  Court  of  the  United  States,  1897.     IGS  U.  S.  144,  IS  Sup.  Ct.  4.j,  42 
L.  Ed.  414.) 

Appeal  from  the  United  States  Circuit  Court  of  Appeals  for  the 

Fifth  Circuit. 

On  the  27th  day  of  June,  1892,  the  Board  of  Trade  of  Troy,  Ala., 

filed  a  complaint  before  the  Interstate  Commerce  Commission,  at  Wash- 
si  See,  also,  Freund,  Police  Power,  §  381. 


508  KELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

ington,  D.  C,  against  the  Alabama  Midland  Railway  Company  and 
the  Georgia  Central  Railroad  Company  and  their  connections ;  claiming 
that,  in  the  rates  charged  for  transportation  of  property  by  the  rail- 
road companies  mentioned,  and  their  connecting  lines,  there  is  a  dis- 
crimination against  the  town  of  Troy,  in  violation  of  the  terms  and 
provisions  of  the  interstate  commerce  act  of  Congress  of  1887  (Act 
Feb.  4,  1887,  c.  10-i,  21  Stat.  379  [U.  S.  Comp.  St.  1901,  p.  3154]). 

The  general  ground  of  complaint  is  that,  Troy  being  in  active  com- 
l^etition  for  business  with  Montgomery,  the  defendant  lines  of  rail- 
way unjustly  discriminate  in  their  rates  against  the  former,  and  give 
the  latter  an  undue  preference  or  advantage,  in  respect  to  certain  com- 
modities and  classes  of  trafiic.     '^     *     * 

The  commission,  having  heard  this  complaint  on  the  evidence  there- 
tofore taken,  ordered,  on  the  15th  day  of  August,  1893,  the  roads  par- 
ticipating in  the  traffic  involved  in  this  case  "to  cease  and  desist"  from 
charging,  demanding,  collecting,  or  receiving  any  greater  compensa- 
tion in  the  aggregate  for  services  rendered  in  such  transportation  than 
is  specified  as  follows,  to  wit:     [The  specification  is  omitted.] 

The  defendants  having  failed  to  heed  these  orders,  the  commission 
thereupon  filed  this  bill  of  complaint  in  the  Circuit  Court  of  the  United 
States  for  the  Middle  District  of  Alabama,  in  equity,  to  compel  obedi- 
ence to  the  same.  On  the  hearing  in  said  court  the  bill  of  complaint 
was  dismissed  (69  Fed,  227),  and  complainant,  the  Interstate  Com- 
merce Commission,  appealed  the  cause  to  the  United  States  Circuit 
Court  of  Appeals  for  the  Fifth  Judicial  Circuit,  at  New  Orleans,  La. 
And  thereupon,  in  said  last-named  court,  on  the  2d  day  of  June,  1896, 
the  decree  of  the  said  Circuit  Court  of  the  United  States  for  the  Mid- 
dle District  of  Alabama  was  in  all  things  duly  affirmed  (21  C.  C.  A. 
51,  74  Fed.  715),  and  from  this  judgment  and  decree  the  appellant 
has  appealed  to  this  court. 

Mr.  Justice  Shiil\s,  after  stating  the  facts  in  the  foregoing  lan- 
guage, delivered  the  opinion  of  the  court.^^     *     *     "^  ■ 

The  first  contention  we  encounter  upon  this  branch  of  the  case  is 
that  the  Circuit  Court  had  no  jurisdiction  to  review  the  judgment  of 
the  commission  upon  this  question  of  fact;  that  the  court  is  only  au- 
thorized to  inquire  whether  or  not  the  commission  has  misconstrued  the 
statute,  and  thereby  exceeded  its  power;  that  there  is  no  general  ju- 
risdiction to  take  evidence  upon  the  merits  of  the  original  controversy ; 
and,  especially,  that  questions  under  the  third  section  are  questions  of 
tact,  and  not  of  power,  and  hence  unreviewable. 

We  think  this  contention  is  sufficiently  answered  by  simply  referring 
to  those  portions  of  the  act  which  provide  that,  when  the  court  is  in- 
voked by  the  commission  to  enforce  its  lawful  orders  or  requirements, 

8  2  Only  a  portion  of  this  case  is  printed. 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL   CONTROL.  599 

the  court  shall  proceed,  as  a  court  of  equity,  to  hear  and  determine  the 
matter,  and  in  such  manner  as  to  do  justice  in  the  premises.^ ^ 

In  the  case  of  Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v.  Interstate  Com- 
merce Commission,  162  U.  S.  184,  16  Sup.  Ct.  700,  40  L.  Ed.  935,  the 
finding's  of  the  commission  were  overruled  by  the  Circuit  Court,  after 
additional  evidence  taken  in  the  court,  and  the  decision  of  the  Circuit 
Court  was  reviewed  in  the  light  of  the  evidence,  and  reversed,  by  the 
Circuit  Court  of  Appeals ;  and  this  court,  in  reference  to  the  argument 
that  the  commission  had  not  given  due  weight  to  the  facts  that  tended 
to  show  that  the  circumstances  and  conditions  were  so  dissimilar  as  to 
justify  the  rates  charged,  held  that  as  the  question  was  one  of  fact, 
peculiarly  within  the  province  of  the  commission,  and  as  its  conclusions 
had  been  accepted  and  approved  by  the  Circuit  Court  of  Appeals,  and 
as  this  court  found  nothing  in  the  record  that  made  it  our  duty  to  draw 
a  different  conclusion,  the  decree  of  the  Circuit  Court  of  Appeals 
should  be  affirmed.  Such  a  holding  clearly  implies  that  there  was 
power  in  the  courts  below  to  consider  and  apply  the  evidence,  and  in 
this  court  to  review  their  decisions. 

So  in  the  case  of  Texas  &  P.  R.  Co.  v.  Interstate  Commerce  Commis- 
sion, 162  U.  S.  197,  16  Sup.  Ct.  666,  40  L.  Ed.  940,  the  decision  of  the 
Circuit  Court  of  Appeals,  which  affirmed  the  validity  of  the  order  of 
the  commission,  upon  the  ground  that,  even  if  ocean  competition  should 


3  3  Interstate  Commerce  Act  (Act  Feb.  4.  1SS7,  c.  104,  24  Stat.  384  [U.  S. 
Comp.  St.  1901,  p.  3165])  §  16:  "Whenever  any  common  carrier,  as  detined 
in  and  subject  to  the  provisions  of  this  act,  shall  violate  or  refuse  or  neglect 
to  obe.v  any  lawful  order  or  I'equirement  of  the  commission  in  this  actuamed. 
it  shall  be  the  duty  of  the  commission,  and  lawful  for  any  company  or  per- 
son interested  in  such  order  or  requirement,  to  apply,  in  a  summary  way, 
by  petition,  to  the  Circuit  Court  of  the  United  States  sitting  in  equity  in 
the  judicial  district  in  which  the  common  carrier  complained  of  has  its 
principal  office,  or  in  which  the  violation  or  disobedience  of  such  order  or 
requirement  shall  happen,  alleging  such  violation  or  disobedience,  as  the 
case  may  be;  and  the  said  court  shall  have  power  to  hear  and  determine 
the  matter,  on  such  short  notice  to  the  common  carrier  complained  of  as  the 
court  shall  deem  reasonable ;  and  such  notice  may  be  served  on  such  com- 
mon carrier,  his  or  its  officers,  agents,  or  servants,  in  such  manner  as  the 
court  shall  direct ;  and  said  court  shall  proceed  to  hear  and  determine  the 
matter  speedily  as  a  court  of  equit.v,  and  without  the  formal  pleadings  and 
proceedings  applicable  to  ordinary  suits  in  equity,  but  iu  such  manner  as  to 
do  justice  in  the  premises;  and  to  this  end  such  court  shall  have  power,  if 
it  think  fit,  to  direct  and  prosecute,  iu  such  mode  and  by  such  persons  as 
it  may  appoint,  all  such  inquiries  as  the  court  may  think  needful  to  enable 
it  to  form  a  just  judgment  in  the  matter  of  such  petition,  and  on  such  hear- 
ing the  report  of  said  commission  shall  be  prima  facie  evidence  of  the  matters 
therein  stated;  and  if  it  be  made  to  appear  to  such  court,  on  such  hearing 
or  on  report  of  any  such  person  or  persons,  that  the  lawful  order  or  require- 
ment of  said  commission  drawn  in  question  has  been  violated  or  disobeyed, 
it  shall  be  lawful  for  such  court  to  issue  a  writ  of  injunction  or  other  proper 
process,  mandatory  or  otherwise,  to  restrain  such  common  carrier  from  fur- 
ther continuing  such  violation  or  disobedience  of  such  order  or  requirement 
of  said  commission,  and  enjoining  obedience  to  the  same." 

This  provision  was  changed  by  Act  June  29,  1906.  c.  3591.  §  5.  34  Stat.  591 
(V.  S.  Comp.  St.  Supp.  1909,  p.  1161).  as  follows:  "*  *  *  If  any  carrier 
fails  or  neglects  to  obey  any  order  of  the  commission,  other  than  for  the  pay- 


600  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

be  reg-arded  as  creating  a  dissimilar  condition,  yet  that  in  the  case  un- 
der consideration  the  disparity  in  rates  was  too  great  to  be  justified  by 
that  condition,  was  reversed  by  this  court,  not  because  the  Circuit 
Court  had  no  jurisdiction  to  consider  the  evidence,  and  thereupon  to 
affirm  the  validity  of  the  order  of  the  commission,  but  because  that  is- 
sue was  not  actually  before  the  court,  and  that  no  testimony  had  been 
adduced  by  either  party  on  such  an  issue ;  and  it  was  said  that  the  lan- 
guage of  the  act,  authorizing  the  court  to  hear  and  determine  the  mat- 
ter as  a  case  of  equity,  "necessarily  implies  that  the  court  is  not  con- 
cluded by  the  findings  or  conclusions  of  the  commission." 

Accordingly  our  conclusion  is  that  it  was  competent,  in  the  present 
case,  for  the  Circuit  Court,  in  dealing  with  the  issues  raised  by  the  pe- 
tition of  the  commission  and  the  answers  thereto,  and  for  the  Circuit 
Court  of  Appeals  on  the  appeal,  to  determine  the  case  upon  a  consider- 
ation of  the  allegations  of  the  parties,  and  of  the  evidence  adduced  in 
their  support ;  giving  effect,  however,  to  the  findings  of  fact  in  the  re- 
port of  the  commission,  as  prima  facie  evidence  of  the  matters  therein 
stated. 

It  has  been  uniformly  held  by  the  several  Circuit  Courts  and  the 
Circuit  Courts  of  Appeals,  in  such  cases,  that  they  are  not  restricted  to 
the  evidence  adduced  before  the  commission,  nor  to  a  consideration 
merely  of  the  power  of  the  commission  to  make  the  particular  order 


ment  of  money,  while  the  same  is  in  effect,  any  party  injured  thereby,  ov  the 
commission  in  its  own  name,  may  apply  to  the  Circuit  Court  *  *  *  for 
an  enforcement  of  such  order.  Such  application  shall  be  by  petition,  which 
shall  *  *  *  i)e  served  upon  the  carrier,  *  *  *  ^nd  the  court  shall 
prosecute  such  inquiries  and  make  such  investigations,  through  such  means 
as  it  shall  deem  needful  in  the  ascertainment  of  the  facts  at  issue,  or  which 
may  arise  upon  the  hearing  of  such  petition.  If  upon  such  hearing  as  the 
court  may  determine  to  be  necessary,  it  appears  that  the  order  was  regularly 
made  and  duly  served,  and  that  the  carrier  is  in  disobedience  of  the  same, 
the  court  shall  enforce  obedience  to  such  order  by  a  writ  of  injunction,  or 
other  proper  process,  mandatory  or  otherwise,  *  *  *  and  in  the  enforce- 
ment of  such  process  the  court  shall  have  those  powers  ordinarily  exercised 
by  it  in  compelling  obedience  to  it  by  writs  of  injunction  and  mandamus. 
From  any  action  upon  such  petition  au  appeal  shall  lie  by  either  party  to 
the  Supreme  Court  of  the  United  States,  and  in  such  court  the  case  shall 
have  priority  in  hearing  and  determination  over  all  other  causes  except  crim- 
inal causes,  but  such  appeal  shall  not  vacate  or  suspend  the  order  appealed 
from.  The  venue  of  suits  brought  in  any  of  the  Circuit  Courts  of  the  United 
States  against  the  commission  to  enjoin,  set  aside,  annul  or  suspend  any  or- 
der or  requirement  of  the  commission  shall  he  in  the  district  where  the  car- 
rier *  *  *  lias  its  principal  operating  office  and  may  be  brought  at  any 
time  after  such  order  is  promulgated.  *  *  *  No  injunction,  interlocutory 
order  or  decree  suspending  or  restraining  the  enforcement  of  an  order  of 
the  commission  shall  be  granted  except  on  hearing  after  not  less  than  five 
days'  notice  to  the  commission.  An  appeal  may  be  taken  from  any  inter- 
locutory order  or  decree  granting  or  continuing  an  injunction  in  any  suit, 
but  shall  lie  only  to  the  Supreme  Court  of  the  United  States." 

See,  also,  the  provision  from  the  act  of  lOOG  set  forth  in  the  passage  next 
quoted. 

"In  consequence  of  one  of  the  comprehensive  amendments  to  the  act  to 
regulate  commerce,  adopted  in  1906  (Act  June  29,  1906,  c.  3591,  §  4,  34  Stat. 
589  [U.  S.  Comp.  St.  Supp.  1900,  p.  1158]),  it  is  now  provided  that  'all  orders 


Cll.  9)       JURISDICTION,  CONCLUSIVEXESS,  AND  JUDICIAL   CONTROL.  GOl 

under  question,  but  that  additional  evidence  may  be  put  in  by  either 
party,  and  that  the  duty  of  the  court  is  to  decide,  as  a  court  of  equity, 
upon  .he  entire  body  of  evidence. 

Coming  at  last  to  the  questions  of  fact  in  this  case,  we  encounter  a 
large  amount  of  conflicting  evidence.  It  seems  undeniable,  as  the  ef- 
fect of  the  evidence  on  both  sides,  that  an  actual  dissimilarity  of  cir- 
cumstances and  conditions  exists  between  the  cities  concerned,  both  as 
respects  the  volume  of  their  respective  trade,  and  the  competition,  af- 
fecting rates,  occasioned  by  rival  routes  by  land  and  water.  Indeed,  the 
commission  itself  recognized  such  a  state  of  facts,  by  making  an  al- 
lowance in  the  rates  prescribed  for  dissimilarity  resulting  from  compe- 
tition; and  it  was  contended  on  behalf  of  the  commission,  both  in  the 
courts  below  and  in  this  court,  that  the  competition  did  not  justify  the 
discriminations  against  Troy  to  the  extent  shown,  and  that  the  allow- 
ance made  therefor  by  the  commission  was  a  due  allowance. 

The  issue  is  thus  restricted  to  the  question  of  the  preponderance  of 
the  evidence  on  the  respective  sides  of  the  controversy.  We  have  read 
the  evidence  disclosed  by  the  record,  and  have  endeavored  to  weigh  it 
with  the  aid  of  able  and  elaborate  discussions  by  the  respective  counsel. 

No  useful  purpose  would  be  served  by  an  attempt  to  formally  state 
and  analyze  the  evidence,  but  the  result  is  that  we  are  not  convinced 
that  the  courts  below  erred  in  their  estimate  of  the  evidence,  and  that 


of  the  commission,  except  orders  for  the  payment  of  money,  shall  take  ef- 
fect within  such  reasonable  time,  not  less  than  thirty  clays,  and  shall  con- 
tinue in  force  for  such  period  of  time,  not  exceeding  two  years,  as  shall  be 
prescribed  in  the  order  of  the  commission,  unless  the  same  shall  be  suspended 
or  modified  or  set  aside  by  the  commission,  or  be  suspended  or  set  aside  by 
a  court  of  competent  jurisdiction.'  The  statute  endowing  the  commission 
with  large  administrative  functions,  and  generally  giving  effect  to  its  orders 
concerning  complaints  before  it  without  exacting  that  they  be  previously 
submitted  to  judicial  authority  for  sanction,  it  becomes  necessary  to  deter- 
mine the  extent  of  the  powers  which  courts  may  exert  on  the  subject.  Be- 
yond controversy,  in  determining  whether  an  order  of  the  commission  shall 
be  suspended  or  set  aside,  we  must  consider  (a)  all  relevant  questions  of  con- 
stitutional power  or  right ;  (b)  all  pertinent  questions  as  to  whether  the  ad- 
ministrative order  is  within  the  scope  of  the  delegated  authority  under  which 
it  purports  to  have  been  made;  and  (c)  a  proposition  which  we  state  inde- 
pendently, although  in  its  essence  it  may  be  contained  in  the  previous  one, 
viz.,  whether,  even  although  the  order  be  in  form  within  the  delegated  power, 
nevertheless  it  must  be  treated  as  not  embraced  therein,  because  the  exertion 
of  authority  which  is  questioned  has  been  manifested  in  such  an  unreason- 
able manner  as  to  cause  it,  in  truth,  to  be  within  the  elementary  rule  that 
the  substance,  and  not  the  shadow,  determines  the  validity  of  the  exercise 
of  the  power.  Postal  Teleg.  Cable  Co.  v.  Adams.  1.55  U.  S.  688,  698.  15  Sup. 
Ct.  268,  360,  39  L.  Ed.  311,  316,  5  Interst.  Com.  Rep.  1.  Plain  as  it  is  that 
the  powers  just  stated  are  of  the  essence  of  judicial  authority,  and  which, 
therefore,  may  not  be  curtailed,  and  whose  discharge  may  not  be  by  us  in  a 
proper  case  avoided,  it  is  equally  plain  that  such  perennial  powers  lend  no 
support  whatever  to  the  proposition  that  we  may,  under  the  guise  of  exert- 
ing judicial  power,  usurp  merely  administrative  functions  by  setting  aside 
a  lawful  administrative  order  upon  our  conception  as  to  whether  the  admin- 
istrative power  has  been  wisely  exei'cised."  Interstate  Commerce  Commis- 
sion v.  Illinois  Cent.  R.  Co.,  215  U.  S.  452,  469,  470,  30  Sup.  Ct.  355,  160,  54 
L.  Ed. (1909). 


602  KELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

we  perceive  no  error  in  the  principles  of  law  on  which  they  proceeded 
in  the  application  of  the  evidence. 

The  decree  of  the  Circuit  Court  of  Appeals  is  accordingly  affirmed. 

Air.  Justice  IIari<an,  dissenting. 


SECTION  -rC— CORPORATIONS 


KANSAS  HOME  INS.  CO.  v.  WILDER. 

(Supreme  Court  of  Kansas,  1890.     43  Kan.  731,  23  Pac.  1061.) 

Johnston,  J.^*  Two  cases  between  the  same  parties  are  submitted 
together  upon  a  single  statement  of  facts,  and  according  to  the  stipula- 
tion of  the  parties  only  two  legal  propositions  are  presented  for  deci- 
sion. The  first  one  of  these  is  whether  the  courts  can  inquire  into  and 
control  the  superintendent  of  insurance  in  the  exercise  of  his  official 
duties  in  granting,  refusing,  or  revoking  a  certificate  of  authority  to 
a  mutual  fire  insurance  company  organized  under  chapter  133  of  the 
Laws  of  1885.  Prior  to  the  legislative  session  of  1889,  the  finding  and 
judgment  of  the  superintendent  in  respect  to  the  solvency  of  an  in- 
surance company,  and  its  compliance  with  the  requirements  of  law^, 
could  not  be  controlled,  and  when  he  had  exercised  his  discretion  and 
judgment  it  could  not  be  reviewed,  nor  the  motives  which  actuated  him 
inquired  into  by  the  courts.  Insurance  Co.  v.  Wilder,  40  Kan.  561,  20 
Pac.  265. 

The  decision  in  the  cited  case,  construing  the  statute  with  reference 
to  the  power  and  discretion  of  the  superintendent,  was  given  in  Jan- 
uary, 1889,  and  the  Legislature,  which  convened  in  the  same  month, 
materially  modified  the  statute,  prescribing  the  power  and  duties  of 
the  superintendent  in  dealing  with  mutual  fire  insurance  companies. 
In  section  24,  c.  132,  Laws  1885,  provision  was  made  that,  whenever 
it  should  appear  to  the  superintendent  of  insurance  that  the  solven- 
cy of  a  mutual  fire  insurance  company  was  impaired,  or  that  the  insur- 
ance laws  of  the  state  were  being  violated,  he  should  immediately 
make  an  examination,  and  for  that  purpose  should  have  access  to  all 
the  books  and  papers  of  the  company,  and  have  power  to  administer 
oaths  and  examine  witnesses.  It  then  proceeds :  "If  the  superintendent 
of  insurance  sJiall  find,  upon  such  examination,  that  the  solvency  of 
the  company  has  been  impaired,  or  that  the  laws  of  the  state  have  been 
violated,  he  shall  immediately  suspend  the  certificate  of  authority  until 
the  laws  of  the  state  have  been  fully  complied  with,  or  the  solvency  of 
the  company  restored;  or,  if  in  his  judgment  the  public  safety  require 

2  4  Only  a  portion  of  the  o]iinion  of  .Tolinston,  J.,  is  printed. 


Ch.  !^)       JURISDICTION,  COXCLUSIVKXESS,  AND   JUDICIAL   CONTROL.         G03 

it,  he  may  revoke  the  certificate  of  authority,  and  cause  the  company 
to  be  enjoined  from  further  insuring  of  property." 

This  section  was  amended  by  chapter  159  of  the  Laws  of  1889, 
[by]  which,  after  providing  for  reports  and  examinations  substantially 
as  in  the  original  section,  the  provision  above  quoted  is  changed  so  as 
to  read  as  follows :  "If  the  solvency  of  such  company  has  been  impair- 
ed, or  the  laws  of  the  state  have  been  violated,  by  the  company,  the  su- 
perintendent of  insurance  shall  immediately  suspend  the  certificate 
of  authority  until  the  laws  of  the  state  have  been  fully  complied  with, 
or  the  solvency  of  the  company  restored ;  and  he  also  may  in  such  a 
case  revoke  the  certificate  of  authority,  and  cause  the  company,  upon 
proper  proceedings  instituted  against  it,  to  be  enjoined  from  further 
insuring  of  property."  Provisos  are  then  added  which,  in  substance, 
state  that  the  superintendent  cannot  refuse  an  insurance  company  a 
certificate  of  authority  to  do  business  in  the  state,  or  revoke  or  suspend 
a  certificate  already  granted  to  such  a  company,  if  it  is  solvent,  and 
has  complied  and  is  complying  with  the  laws  of  the  state.  And  the 
provisos  further  recognize  that  actions  may  be  brought  against  the  su- 
perintendent of  insurance  in  the  county  where  his  office  is  located,  to 
compel  him  to  issue  certificates  of  authority  to  an  insurance  company, 
and  to  restrain  him  from  revoking  or  suspending  a  certificate  of  au- 
thority which  had  been  theretofore  granted. 

The  language  in  the  statute  of  1885  which  we  have  italicized  was 
omitted  in  the  amendment  of  1889.  In  the  earlier  provision,  the  li- 
cense or  certificate  of  authority  might  be  suspended  on  the  mere  find- 
ing of  the  superintendent  that  the  solvency  of  the  company  had  been 
impaired,  and  it  might  be  revoked  solely  upon  his  judgment  that  the 
public  safety  required  it.  The  language  authorizing  the  suspension  or 
revocation  of  a  certificate  of  authority  upon  the  mere  finding  and  dis- 
cretion of  the  superintendent  is  carefully  excluded  from  the  later  pro- 
vision. These  changes,  together  with  the  provisions  forbidding  the 
refusal,  revocation,  or  suspension  of  a  certificate  of  authority  by  the 
superintendent,  Avhere  the  company  is  solvent,  and  has  complied  with 
all  the  laws  of  the  state,  as  well  as  the  proviso  which  recognizes  that 
an  action  of  mandamus  may  be  brought  to  compel  the  superintendent 
to  issue  certificates  of  authority,  and  an  action  of  injunction  may  be 
brought  against  him  to  enjoin  him  from  revoking  or  suspending  cer- 
tificates of  authority,  indicate  quite  clearly  the  legislative  purpose  that, 
in  the  future,  the  determination  and  action  of  the  superintendent  should 
not  be  final  and  conclusive,  so  far  as  mutual  fire  insurance  companies 
are  concerned. 

The  fact  that  the  law  was  amended  so  soon  after  a  judicial  construc- 
tion had  been  placed  upon  it  is  not  to  be  overlooked  in  ascertaining  the 
object  of  the  Legislature  in  enacting  the  amended  law.  By  changing 
the  language  of  the  statute,  the  Legislature  has  indicated  a  purpose  to 
change  the  rule  of  the  former  statute,  and  that  the  new  is  to  have  a  dif- 
ferent construction  than  had  already  been  placed  upon  the  old  one. 


G04  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    3 

This  circumstance,  and  the  changes  in  the  phraseology  that  were  made, 
manifest  a  legislative  purpose  to  make  the  determination  of  the  su- 
perintendent, as  to  the  right  of  a  mutual  fire  insurance  company  to 
begin  or  continue  business,  subject  to  judicial  inquiry  and  control.  If 
this  was  not  the  effect,  then  the  amendment  was  for  no  purpose ;  and 
it  is  contended  here  that  no  actual  change  was  made  or  intended  by 
the  amendment.  But  we  cannot  presume  that  the  "Legislature  in- 
tended to  go  through  the  form  and  time  and  expense  of  legislation  to 
accomplish  nothing,  or  to  do  that  already  fully  and  completely  done." 
City  of  Emporia  v.  Norton,  16  Kan.  23G.  The  first  question  presented 
must  therefore  be  decided  in  the  affirmative.     '■■■     ■•'     -•' 


PROVIDENT  SAVING  LIFE  ASSUR.  SOCIETY  v.  CUTTING. 
Insurance  Com'r. 

(Supreme  Judicial  Court  of  Massachusetts,   1902.     181  Mass.  2G1,  G3  N.  E. 
433,  92  Am.  St.  Rep.  41.5.) 

Case  reserved  from  Supreme  Judicial  Court,  Suffolk  county. 

Petition  for  mandamus  by  the  Provident  Savings  Life  Assurance 
Society  of  New  York  against  Frederick  L.  Cutting,  Insurance  Commis- 
sioner of  the  Commonwealth.  Case  reserved  for  the  determination  of 
the  full  court  on  the  petition,  demurrer,  and  agreed  statement  of  facts. 
Petition  dismissed. 

Knowlton,  J.  This  is  a  petition  for  a  writ  of  mandamus  to  com- 
pel the  insurance  commissioner  to  change  his  valuation  of  the  out- 
standing policies  of  the  petitioner  so  as  to  diminish  the  reserve  lia- 
bility for  which  it  must  have  assets  to  meet  the  requirements  of  our 
law.  The  duty  of  the  commissioner  to  make  this  valuation  under  Rev. 
Laws,  c.  118,  §  11,  is  only  a  preliminary  part  of  his  duty,  under  sec- 
tion 17  of  this  chapter,  annually  to  "make  a  report  to  the  general  court 
of  his  official  transactions,"  in  which  he  shall  include,  among  other 
things,  "an  exhibit  of  the  financial  condition  and  business  transactions 
of  the  several  insurance  companies  as  disclosed  by  official  examina- 
tions of  the  same,  or  by  their  annual  statements,  abstracts  of  which 
statements,  with  his  valuation  of  life  policies,  shall  appear  therein,  and 
such  other  information  and  comments  relative  to  insurance  and  to  the 
public  interest  therein,  as  he  thinks  proper."  It  is  important  in  one 
other  way.  It  naturally  is  used  in  part  as  a  foundation  for  action  in 
case  he  is  called  upon,  under  section  7,  to  revoke  or  suspend  the  certif- 
icates and  authority  granted  to  a  foreign  insurance  company  because 
he  is  of  opinion  that  it  is  "in  an  unsound  condition,"  or  "that  its  ac- 
tual funds,  exclusive  of  its  capital,  are  less  than  its  liabilities." 

The  complaint  against  the  respondent  is  that  in  applying  the  rule  of 
computation  prescribed  by  the  statute  to  a  certain  class  of  policies  is- 
sued by  the  petitioner,  he  has  made  a  mistake  in  holding  that,  for  the 


Cll.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL  CONTROL.         G05 

purpose  of  ascertaining  their  reserve  value,  they  are  to  be  treated  as 
being  from  their  inception  poHcics  for  Hfe  or  for  an  endowment  period, 
and  not  as  policies  for  one  year  only,  with  an  option  in  the  assured  to 
continue  them  in  force  at  the  end  of  the  year  without  a  further  physical 
examination,  and  without  an  increase  of  premium  on  account  of  his 
greater  age.  It  is  not  contended  that  he  has  acted  in  bad  faith,  or  has 
willfully  disobeyed  the  law.  There  is  only  a  difference  of  opinion  be- 
tween the  petitioner  and  the  respondent  as  to  the  proper  application  of 
the  rule  prescribed  by  the  statute  to  the  methods  of  the  petitioner  in  in- 
suring under  this  class  of  policies. 

A  preliminary  question  is  whether  the  decision  of  the  commissioner 
in  a  matter  of  this  kind  is  subject  to  revision  by  this  court  on  an  ap- 
plication for  a  writ  of  mandamus.  In  various  proceedings  affecting 
foreign  insurance  companies  the  statute  makes  no  provision  for  an  ap- 
peal from  his  decision,  but  manifestly  intends  that  his  conclusion,  in 
the  exercise  of  his  judgm.ent,  shall  be  final.  Particularly  is  this  so  in  the 
valuation  of  policies  and  assets  and  the  determination  of  the  financial 
condition  of  foreign  companies  doing  business  in  this  commonwealth. 
"Before  granting  certificates  of  authority  to  an  insurance  company  to 
issue  policies  or  make  contracts  of  insurance,  the  commissioner  shall 
be  satisfied  by  such  examination  as  he  may  make  and  such  evidence  as 
he  may  require,  that  such  company  is  otherwise  qualified  under  the  laws 
of  this  commonwealth  to  transact  business  herein."  Rev.  Laws,  c.  118, 
§  6.  By  Rev.  Laws,  c.  120,  §  10,  he  has  absolute  authority  to  give  or 
withhold  his  indorsement  upon  a  requisition  of  the  directors  for  the 
withdrawal  of  any  portion  of  an  emergency  fund  deposited  by  an  as- 
sessment insurance  company  with  the  treasurer  of  the  commonw^ealth. 
Under  Rev.  Laws,  c.  120,  §  12,  the  authority  granted  to  a  foreign  as- 
sessment insurance  company  to  do  business  in  this  commonwealth 
"shall  be  revoked  if  the  insurance  commissioner,  on  investigation,  is 
satisfied  that  such  corporation  is  not  paying  in  full  the  maximum 
amount  named  in  its  policies,  or  that  it  has  otherwise  failed  to  comply 
with  any  provision  of  this  chapter  or  its  own  contracts." 

In  regard  to  the  reduction  of  capital  stock  of  an  insurance  compa- 
ny it  is  provided  by  Rev.  Laws,  c.  118,  §  37,  that,  "if  the  commissioner 
finds  that  the  reduction  is  made  in  conformity  to  law,  and  that  it  will 
not  be  prejudicial  to  the  public,  he  shall  endorse  his  approval  upon  the 
certificate."  By  section  67  of  this  chapter  a  company  organized  under 
the  laws  of  another  state  may  be  admitted  to  do  business  in  this  com- 
monwealth, "if  in  the  opinion  of  the  commissioner,  it  is  in  sound 
financial  condition,"  etc.  Section  72  provides  that  "no  domestic 
life  insurance  company  shall  reinsure  its  risks  except  by  permis- 
sion of  the  insurance  commissioner;  but  may  reinsure  not  exceed- 
ing one-half  of  any  individual  risk."  Under  section  78  "no  foreign 
insurance  company  shall  be  so  admitted  and  authorized  to  do  business 
until  *  *  *  it  has  satisfied  the  insurance  commissioner"  of  nu- 
merous facts  therein  stated.    The  terms  of  each  of  these  sections  make 


606  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

it  plain  that  the  opinion  and  judgment  of  the  insurance  commissioner 
is  to  be  final  and  conclusive  in  determining  these  important  matters 
upon  which  the  rights  of  the  insurance  companies  and  the  protection 
of  the  public  depend.  Most,  if  not  all,  of  these  several  conclusions  in- 
volve the  consideration  of  questions  of  law  as  well  as  questions  of 
fact. 

In  regard  to  the  only  important  results  depending  upon  the  valua- 
tion of  policies  to  ascertain  the  reserve  liability  of  insurance  companies, 
namely,  the  making  of  a  report  to  the  Legislature,  and  the  revocation 
or  suspension  of  certificates  of  authority  to  do  business,  it  seems  that 
the  judgment  of  the  commissioner  is  not  subject  to  revision.  Under 
section  17  he  is  to  make  a  report  of  the  financial  condition  of  insur- 
ance companies  and  of  their  transactions  and  the  valuation  of  life 
policies,  which  must  mean  a  report,  according  to  his  understanding  of 
the  facts,  founded  on  examinations  and  statements.  By  section  7  he 
is  to  revoke  or  suspend  certificates  of  authority  granted  to  a  foreign 
insurance  company  if  he  "is  of  opinion,  upon  examination  or  other 
evidence,  that  a  foreign  insurance  company  is  in  an  unsound  condi- 
tion, that  it  has  failed  to  comply  with  the  law,  or  that  its  actual  funds, 
exclusive  of  its  capital,  if  it  is  a  life  insurance  company,  are  less  than 
its  liabilities,"  etc.,  and  no  new  business  can  thereafter  be  done  by  such 
company  '"until  its  authority  to  do  business  is  restored  by  the  commis- 
sioner." If  the  "ground  for  revocation  or  suspension  relates  only  to 
the  financial  condition  or  soundness  of  the  company,  or  to  a  deficiency 
in  its  assets,"  there  is  no  appeal  from  a  decision  of  the  commissioner. 
In  other  cases  the  company  may  apply  to  the  Supreme  Judicial  Court 
for  a  reversal  of  his  decision.  Here  again  is  an  indication  that  the 
judgment  of  the  commissioner  in  all  matters  of  law  or  fact  involved  in 
determining  the  financial  condition  of  a  company  for  a  purpose  affect- 
ing it,  even  to  the  extent  of  terminating  its  existence  as  an  insurer  in 
this  commonwealth,  is  to  be  final  and  conclusive. 

The  valuation  of  policies  for  the  purpose  of  determining  the  reserve 
liability  is  only  one  of  the  processes  necessary  to  determine  the  com- 
pany's financial  condition.  It  involves  an  application  of  the  statutory 
rule  to  each  policy,  in  connection  with  the  methods  and  practices  in  the 
transaction  of  the  business  that  exist  either  as  a  part  of  the  science 
of  life  insurance  or  otherwise  outside  of  the  stipulations  of  the  policy. 
New  forms  of  policies  may  be  adopted  which  were  not  known  when 
the  statutory  rule  was  established,  and  new  questions  may  arise  de- 
pending in  part  upon  the  principles  of  life  insurance  as  a  science  and 
in  part  upon  the  practices  of  the  company,  as  well  as  upon  rules  of 
law,  in  determining  how  the  statutory  rule  shall  apply  to  these  policies. 
In  the  present  case,  even  if  the  contracts  referred  to  are  to  be  consid- 
ered technically  as  the  petitioner  contends,  the  statute  is  silent  as  to 
whether  the  value  of  the  option  to  continue  the  insurance  at  the  end  of 
the  year  without  an  examination,  and  at  the  premium  fixed  for  an  age 
a  year  younger  than  the  assured  would  then  have  attained,  is  not  to 


Ch.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL   CONTROL,         GOT 

be  considered  in  determining  the  reserve  liability  of  the  company  under 
the  contract. 

Questions  of  fact  and  questions  of  law  must  be  considered  in  com- 
ing to  a  conclusion.  In  valuing-  all  the  assets  of  a  company,  which 
usually  comprise  investments  of  many  kinds,  questions  of  law  as  well 
as  questions  of  fact  must  inevitably  arise.  If  we  are  to  examine  each 
policy  or  class  of  policies,  together  with  the  methods  of  the  company 
in  fixing  their  premiums,  and  any  other  facts  pertaining  to  the  policies 
which  are  different  from  those  belonging  to  other  kinds  of  policies, 
for  the  purpose  of  determining  whether  the  insurance  commissioner 
has  made  a  mistake  of  law  in  valuing  them,  we  know  of  no  good 
reason  why  his  valuation  of  each  item  of  the  assets  might  not  be  ex- 
amined to  see  if  it  is  affected  by  a  mistake  of  law.  A  mistake  of  the 
latter  kind  might  be  as  detrimental  to  the  company  as  one  of  the  for- 
mer, whether  viewed  in  reference  to  its  eft'ect  upon  the  commissioner's 
report  or  upon  his  determination  to  revoke  or  suspend  the  certificate 
of  authority.  If  the  commissioner's  mistakes  of  law  are  to  be  cor- 
rected on  an  application  for  a  writ  of  mandamus,  his  mistakes  in  the 
construction  of  contracts  entering  into  investments  should  be  dealt 
with  as  well  as  his  mistakes  in  the  construction  of  contracts  for  in- 
surance. 

We  are  of  opinion  that  the  statute  does  not  contemplate  a  revision 
of  the  commissioner's  decisions  in  this  way.  This  officer  is  intrusted 
with  the  performance  of  important  duties,  and  invested  with  power 
to  use  his  discretion  and  judgment  in  matters  which  call  for  prompt 
and  decisive  action,  and  which  would  be  difficult  to  investigate  in  our 
courts.  We  are  of  opinion  that,  at  least  so  long  as  he  acts  in  good 
faith,  intending  to  obey  the  law,  we  cannot,  by  a  writ  of  mandamus, 
compel  him  to  change  his  conclusions,  either  of  law  or  fact,  in  the 
valuation  of  the  policies  or  assets  of  a  life  insurance  company. 

Without  considering  whether  any  mistake  appears,  we  must  deny 
the  petitioner's  application.  Similar  decisions  have  been  made  in  re- 
gard to  the  powers  of  the  insurance  commissioner  in  Ohio  and  Kan- 
sas. State  V.  Moore,  42  Ohio  St.  103 ;  Insurance  Co.  v.  Wilder,  40 
Kan.  561,  20  Pac.  265. 

Petition  dismissed. 


UNITED   STATES  FIDELITY  &  GUARANTY  CO.   v.  LINE- 
HAN,  Insurance  Com'r. 

(Supreme  Court  of  New  Hampshire,  1904.     73  N.  II.  41,  58  Atl.  O.jG.) 

Mandamus  by  the  United  States  Fidelity  &  Guaranty  Company 
against  John  C.  Linehan,  insurance  commissioner.    Writ  granted. 

The  plaintiff  is  incorporated  under  the  laws  of  Maryland,  and  under 
authority  of  its  charter  is  engaged  outside  of  New  Hampshire  in  the 
business  of  a  fidelity  and  surety  company  and  in  the  burglary  insurance 


COS  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

business.  It  was  licensed  to  do  business  as  a  fidelity  and  surety  com- 
pany in  this  state  on  February  17,  189 T,  since  which  date  its  license 
has  been  renewed  continuously,  except  for  a  short  time  after  May  29, 
1900.  On  July  Ifi,  1900,  and  on  other  dates  since  then,  the  plaintiff 
requested  the  defendant  to  issue  to  it  a  license  to  do  a  burglary  insur- 
ance business  in  New  Hampshire,  in  addition  to  the  license  to  do  fideli- 
ty and  guaranty  business,  and  the  defendant  refused  to  do  so.  It 
has  complied  with  all  the  provisions  of  the  statutes  which  are  prereq- 
uisite to  the  issuance  of  the  license  prayed  for,  if  it  is  entitled  thereto. 

The  defendant,  acting  in  good  faith  in  his  capacity  as  insurance 
commissioner,  refused  to  issue  a  license  to  the  plaintiff  company. 
While  he  believed  that,  as  a  general  rule,  speaking  not  of  to-day,  but  of 
the  future,  no  company  that  does  a  surety  business  in  combination  with 
any  other  business  is  a  safe  and  reliable  company,  he  was  satisfied  that 
the  plaintiff  was  a  safe,  reliable  company,  entitled  to  public  confidence 
at  present,  and  should  consider  it  as  such  if  permitted  to  do  burglary 
insurance  business  in  New  Hampshire.  He  also  believed  that  it  would 
be  contrary  to  public  policy  to  permit  such  a  combination  of  surety 
and  other  insurance  business  in  this  state.  This  belief  was  based  upon 
the  length  of  time  that  must  necessarily  elapse  before  the  ultimate  lia- 
bility on  surety  bonds  can  be  ascertained,  and  upon  the  lack  of  statis- 
tics from  which  to  compute  the  proper  relation  between  reserve  fund 
and  liability.  But  he  believed  this  company  would  be  able  to  do  its 
entire  business  with  perfect  safety  if  permitted  to  do  burglary  insur- 
ance business  in  New  Hampshire  in  addition  to  its  other  lines,  and 
would  continue  so,  unless  the  company  added  more  hazardous  lines 
than  the  one  now  proposed;  but  he  objected  to  licensing  this  company 
because  he  believed  that  it  was  against  public  policy,  for  the  reason 
that  the  combination  of  surety  business  with  other  insurance  business 
was  unsafe  as  a  general  proposition. 

Walker,  J.  The  plaintiff  is  a  Maryland  corporation,  and  under  its 
charter  it  is  authorized  to  carry  on  in  combination  the  business  of  a 
surety  company  and  that  of  a  burglary  insurance  company.  Both 
classes  of  business  properly  fall  under  the  general  designation  of  in- 
surance. The  plaintiff'  is  an  insurance  company,  empowered  by  its 
charter  to  do  a  dual  insurance  business.  But  its  charter  does  not  con- 
fer upon  it  power  to  engage  in  business  in  New  Hampshire.  Such 
power,  if  it  exists,  is  derived  from  the  expressed  or  implied  will  of  the 
Legislature  of  this  state.  It  is  a  privilege  or  license  which  the  Legis- 
lature may  withhold  from  corporations  like  the  plaintiff",  organized  in 
other  states  (Pembina  Mining  Co,  v.  Pennsylvania,  125  U.  S.  181,  8 
Sup.  Ct.  737,  31  L.  Ed.  650) ;  but,  in  the  al3sence  of  express  legisla- 
tion against  the  exercise  of  the  privilege  by  such  corporations,  it  is 
generally  held  that  they  acquire  the  right  by  comity,  or  that  legislative 
silence  upon  the  subject  is  equivalent  to  permission  (2  Mor.  Corp.,  §§ 
9G0,  961 ;  Cowell  v.  Springs  Co.,  100  U.  S,  55,  59,  25  L.  Ed.  547). 
A  state  policy  may  be  as  thoroughly  established  in  this  way  as  by  posi- 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL   CONTROL.       ,  G09 

tive  enactment.  If  the  Legislature  does  not  see  fit  to  prohibit  a  for- 
eign corporation  from  carrying  its  business  here,  when  it  is  not  re- 
pugnant to  common-law  principles,  it,  in  effect,  declares  the  public  pol- 
icy of  the  state  to  be  favorable  to  its  engaging  in  business  here.  The 
presumption  of  legislative  intention,  founded  upon  the  doctrine  of 
comity,  affords  ample  evidence  in  support  of  that  conclusion. 

It  is  not  claimed  that  there  is  any  legislation  in  this  state  which  pro- 
hibits an  insurance  company  of  another  state  from  carrying  on  here 
the  business  of  a  surety  company  or  that  of  a  burglary  insurance  com- 
pany. In  accordance,  therefore,  with  the  principle  above  noted,  it  fol- 
lows that  it  is  the  policy  of  the  state  to  permit  companies  to  engage 
here  in  those  lines  of  insurance,  restricted  only  by  their  charter  pro- 
visions and  such  regulations  or  conditions  as  the  Legislature  has  en- 
acted relating  to  the  business  of  insurance.  By  comity  they  are  invested 
with  a  qualified  right  to  do  business  here,  of  which  they  cannot  be  de- 
prived except  by  legislative  prohibition.  These  principles  have  re- 
ceived legislative  sanction  in  statutes  regulating  the  business  of  for- 
eign insurance  companies  and  surety  companies.  Pub.  St.  1901,  cc. 
169,  172. 

Nor  has  the  Legislature  furnished  evidence  of  a  policy  to  exclude 
insurance  companies  from  the  state  which  combine  two  or  more  dis- 
tinct classes  of  insurance  business.  In  United  States,  etc.,  Co.  v.  Line- 
han,  70  N.  H.  395,  47  Atl.  611,  it  was  held  that  a  foreign  surety  com- 
pany may  be  licensed  to  transact  that  business  in  this  state,  although 
authorized  by  its  charter  to  engage  in  other  business.  The  Legislature 
had  not  made  the  fact  that  it  was  authorized  by  its  charter  to  do  sev- 
eral kinds  of  insurance  business  conclusive  evidence  against  its  right, 
by  comity,  to  do  one  kind.  In  Employers'  Assurance  Corp.  v.  Merrill, 
155  Mass.  404,  405,  29  N.  E.  529,  it'is  said:  "Before  the  year  1879, 
foreign  companies,  authorized  by  their  charters  to  transact  more  than 
one  class  of  insurance,  and  admitted  here,  were  not  restricted  in  their 
operations  by  our  statutes ;  but  since  the  passage  of  the  statute  of 
1879  (page  484,  c.  130),  such  companies,  with  exceptions  not  ma- 
terial to  the  present  case,  have  been  required  to  elect  one  class  or  kind 
of  business,  and  allowed  to  transact  here  only  that  class  or  kind." 
And  the  court  further  say  (page  410,  155  Mass.,  page  531,  29  N.  E.), 
that  originally  ''foreign  companies,  under  certain  conditions  not  re- 
stricting the  classes  of  risks  which  they  might  write,  were  allowed  to 
transact  business  here.  A  license  or  certificate  of  authority  from  the 
insurance  commissioner  was  first  provided  for  by  the  statute  of  1878 
(page  93,  c.  130,  §  6),  and  the  foreign  company  to  w4iom  it  was  issued 
was  thereupon  'authorized  to  transact  business  in  this  commonwealth,' 
and  was  restricted  only  by  its  charter." 

A  similar  result  was  reached  in  People  v.  Company,  153  111.  25,  38 
N.  E.  752,  26  L.  R.  A.  295,  where  it  was  held  that,  in  the  absence  of 
anv  prohibition  in  the  statute  against  the  business  of  multiform  insur- 
Fr  .  A  D  jr.  La  \v — 39 


610  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

ance,  the  comity  that  prevails  between  the  states  permits  a  foreign 
corporation  to  do  such  insurance  in  Illinois,  although  the  statute  of 
that  state  does  not  authorize  the  formation  of  companies  for  that  pur- 
pose. See,  also,  State  v.  Insurance  Co.,  39  Minn.  538,  41  N.  W.  108. 
By  comity  the  plaintiff  acquired  the  right  to  carry  on  its  dual  business 
in  this  state,  subject  to  the  statutory  regulations  imposed  upon  foreign 
insurance  companies ;  and  its  right  in  this  respect,  until  revoked  by 
the  Legislature,  is  as  secure  and  stable  as  though  it  had  been  acquired 
by  express  grant  from  that  body. 

As  the  Legislature  has,  in  eft'ect,  authorized  foreign  insurance  cor- 
porations carrying  on  more  than  one  line  of  insurance  to  exercise  their 
charter  powers  in  this  state,  subject  to  certain  statutory  regulations,  it 
is  clear  that  they  cannot  be  excluded  by  the  commissioner  simply  upon 
the  ground  that  he  believes  that  such  combinations,  as  a  general  rule, 
are  opposed  to  the  public  interest.  If  such  a  company  has  complied 
with  the  prescribed  regulations,  and  "the  commissioner  is  satisfied 
that  the  company  has  the  requisite  capital  and  assets,  and  that  it  is  a 
safe,  reliable  company,  entitled  to  confidence,  he  shall  grant  a  license 
to  it  to  do  insurance  business  by  authorized  agents  within  the  state, 
subject  to  the  laws  of  the  state,  until  the  first  day  of  April  thereafter." 
Pub.  St.  1901,  c.  169,  §  6.  If,  upon  examination,  he  finds  that  the  com- 
pany has  complied  with  the  requirements  of  the  statute,  and  he  is 
satisfied  that  it  has  the  requisite  capital  and  assets,  and  "that  it  is  a 
safe,  reliable  company,  entitled  to  confidence,"  it  is  his  duty  to  grant 
the  license.  The  finding  of  these  facts  in  favor  of  the  company  ren- 
ders his  opinion  as  to  the  general  nature  of  the  insurance  business  it  is 
authorized  by  its  charter  to  do  immaterial.  The  duty  imposed  upon 
him  is  to  carry  out  the  purpose  of  the  Legislature,  judicially  ascer- 
tained, and  that  purpose  does  not  authorize  him  officially  to  pass  upon 
the  general  question  of  the  utility  of  permitting  foreign  insurance  com- 
panies to  do  business  in  this  state. 

The  nature  of  the  applicant's  business  is  undoubtedly  to  be  consid- 
ered by  the  commissioner  as  evidence  upon  the  question  of  its  relia- 
bility as  a  business  corporation,  and  it  is  conceivable  that  that  alone 
might  warrant  his  finding  of  the  fact  of  its  unreliability.  Also,  the 
difficulty  of  computing  the  ratio  between  its  reserve  fund  and  its  lia- 
bilities is  an  evidentiary  fact  bearing  upon  the  question  of  its  finan- 
cial soundness.  But  when,  upon  the  evidence  before  him,  he  is  satis- 
fied, as  he  was  in  this  case,  that  the  company  "was  a  safe,  reliable 
company,  entitled  to  public  confidence  at  present,"  that  "its  methods 
of  business  were  safe  and  conservative,"  and  that  it  "would  be  able,  to 
do  its  entire  business  with  perfect  safety  if  permitted  to  do  burglary 
insurance  business  in  New  Hampshire  in  addition  to  its  other  lines, 
and  would  continue  so  unless  the  company  added  more  hazardous 
lines  than  the  one  now  proposed,"  he  cannot  exclude  it  on  the  ground 
that  it  is  theoretically  unreliable.  If  by  reason  of  the  dual  character 
of  its  business  he  was  unable  to  determine  the  question  of  its  relia- 


Ch.  9)      JURISDICTION,  COXCLUSIVENESS,  AND   JUDICIAL  CONTROL.         Gil 

bility,  or  if  he  was  satisfied  that  such  a  business  combination  rendered 
this  company  unsafe  in  fact  for  public  patronage,  his  refusal  to  grant 
it  a  license  would  seem  to  have  been  amply  justified. 

The  evidence  which  satisfies  him  that  the  company  is  entitled  to  pub- 
lic confidence  shows  that  his  theory  that  such  companies  are  not  safe 
and  reliable  is  not  of  universal  application,  and  ought  not  to  be  in- 
variably followed.  The  character  of  its  business  does  not  afford  con- 
clusive proof  that  it  is  unsafe.  It  may  be  safe  in  the  statutory  sense, 
notwithstanding  it  does  a  dual  business ;  and  the  commissioner's  find- 
ing that  it  is  safe  and  reliable,  as  a  matter  of  fact,  renders  the  objec- 
tion that  it  is  theoretically  unsafe  of  Httle  practical  consequence.  How- 
ever it  may  be  with  other  similar  companies,  the  commissioner  finds 
that  this  company  possesses  all  the  statutory  requirements  for  carry- 
ing on  its  business  in  this  state,  comity  favors  its  admission,  and  hence 
it  is  entitled  to  the  license  sought  as  a  matter  of  legal  right.  It  only 
remains  for  the  commissioner  to  perform  the  ministerial  duty  of  is- 
suing the  license,  and  that  duty  may  be  appropriately  enforced  in 
this  proceeding.  Boody  v.  Watson,  64  N.  H.  162,  9  Atl.  791;  Hart 
V.  Folsom,  70  N.  H.  313,  217,  47  Atl.  603 ;  Manchester  v.  Furnald, 
71  N.  H.  153,  158,  51  Atl.  657. 

Petition  arranted.     xA.ll   concurred. 


SECTION  77.— IMMIGRATION— QUESTION  OF  CONDITION 
OF  ALIEN 


NISHIMURA  EKIU  v.  UNITED  STATES  et  al. 

(Supreme  Court  of  United  States,  3892.     142  U.  S.  651,  12  Sup.  Ct.  336.  3.5 
L.  Ed.  1140.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  North- 
ern District  of  California.    Affirmed. 

Habeas  corpus,  sued  out  May  13,  1891,  by  a  female  subject  of 
the  emperor  of  Japan,  restrained  of  her  liberty  and  detained  at  San 
Francisco  upon  the  ground  that  she  should  not  be  permitted  to  land 
in  the  United  States. 

The  petitioner  arrived  at  the  port  of  San  Francisco  on  the  steam- 
ship Belgic,  from  Yokohama,  Japan,  on  May  7,  1891.  William  H. 
Thornley,  commissioner  of  immigration  of  the  state  of  California, 
and  claiming  to  act  under  instructions  from  and  contract  with  the 
Secretary  of  the  Treasury  of  the  United  States,  refused  to  allow 
her  to  land ;  and  the  collector  wrote  to  Thornley,  approving  his 
action. 


G12  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

Thereafter,  on  Alay  13,  1891,  this  writ  of  habeas  corpus  was  is- 
sued to  Thornley,  and  he  made  the  following  return  thereon :  "In 
obedience  to  the  within  wi^it  I  hereby  produce  the  body  of  Nishimura 
Ekiu,  as  within  directed,  and  return  that  I  hold  her  in  my  custody 
by  direction  of  the  customs  authorities  of  the  port  of  San  Fran- 
cisco, Cal.,  under  the  provisions  of  the  immigration  act;  that,  by 
an  understanding  between  the  United  States  attorney  and  the  at- 
torney for  petitioner,  said  party  will  remain  in  the  custody  of  the 
Methodist  Episcopal  Japanese  and  Chinese  Mission  pending  a  final 
disposition  of  the  writ."  The  petitioner  remained  at  the  mission 
house  until  the  final  order  of  the  Circuit  Court. 

Afterwards,  and  before  a  hearing,  the  following  proceedings  took 
place:  On  May  16th  the  district  attorney  of  the  United  States  in- 
tervened in  opposition  to  the  writ  of  habeas  corpus,  insisting  that 
the  finding  and  decision  of  Thornley  and  the  collector  were  final  and 
conclusive,  and  could  not  be  reviewed  by  the  court.  John  L.  Hatch, 
liaving  been  appointed  on  May  14th,  by  the  Secretary  of  the  Treasu- 
ry, inspector  of  immigration  at  the  port  of  San  Francisco,  on  May 
16th  made  the  inspection  and  examination  required  by  the  act  of 
March  3,  1891,  c.  551,  26  Stat.  1084  (U.  S.  Comp.'St.  1901,  p. 
1294),  entitled  "An  act  in  amendment  to  the  various  acts  relative  to 
immigration  and  the  importation  of  aliens  under  contract  or  agree- 
ment to  perform  labor,"  and  refused  to  allow  the  petitioner  to  land, 
and  made  a  report  to  the  collector  in  the  very  words  of  Thornley's 
report,  except  in  stating  the  date  of  the  act  of  Congress,  under  which 
he  acted,  as  March  3,  1891,  instead  of  August  3,  1882;  and,  on 
May  18th,  Hatch  intervened  in  opposition  to  the  writ  of  habeas  cor- 
pus, stating  these  doings  of  his,  and  that  upon  said  examination  he 
found  the  petitioner  to  be  "an  alien  immigrant  from  Yokohama,  em- 
pire of  Japan,"  and  "a  person  without  means  of  support,  without 
relatives  or  friends  in  the  United  States,"  and  "a  person  unable  to 
care  for  herself,  and  liable  to  become  a  public  charge,  and  there- 
fore inhibited  from  landing  under  the  provisions  of  said  act  of  1891, 
and  previous  acts  of  which  said  act  is  amendatory,"  and  insisting 
that  his  finding  and  decision  were  reviewable  by  the  superintendent 
of  immigration  and  the  Secretary  of  the  Treasury  only. 

At  the  hearing  before  the  commissioner  of  the  Circuit  Court,  the 
petitioner  offered  to  introduce  evidence  as  to  her  right  to  land ;  and 
contended  that  the  act  of  1891,  if  construed  as  vesting  in  the  officers 
named  therein  exclusive  authority  to  determine  that  right,  was  in 
so  far  unconstitutional,  as  depriving  her  of  her  liberty  without  due 
process  of  law;  and  that  by  the  Constitution  she  had  a  right  to  the 
writ  of  habeas  corpus,  which  carried  with  it  the  right  to  a  determi- 
nation by  the  court  as  to  the  legality  of  her  detention,  and  therefore, 
necessarily,  the  right  to  inquire  into  the  facts  relating  thereto. 

The  commissioner  excluded  the  evidence  offered  as  to  the  peti- 
tioner's right  to  land,  and  reported  that  the  question  of  that  right 


Ch.  9)      JURISDICTION,  COXCLUSIVEXESS,  AND  JUDICIAL   CONTROL.         613 

had  been  tried  and  determined  by  a  duly  constituted  and  competent 
tribunal  having  jurisdiction  in  the  premises;  that  the  decision  of 
Hatch,  as  inspector  of  immigration,  was  conclusive  on  the  right  of 
the  petitioner  to  land,  and  could  not  be  reviewed  by  the  court,  but 
only  by  the  commissioner  of  immigration  and  the  Secretary  of  the 
Treasury ;  and  that  the  petitioner  was  not  unlawfully  restrained  of 
her  liberty. 

On  July  24,  1891,  the  Circuit  Court  confirmed  its  commissioner's 
report,  and  ordered  "that  she  be  remanded  by  the  marshal  to  the  cus- 
tody from  which  she  has  been  taken,  to  wit,  to  the  custody  of  J.  L. 
•Hatch,  immigration  inspector  for  the  port  of  San  Francisco,  to  be 
dealt  with  as  he  may  find  that  the  law  requires,  upon  either  the 
present  testimony  before  him,  or  that  and  such  other  as  he  may  deem 
proper  to  take."    The  petitioner  appealed  to  this  court. 

Mr.  Justice  Gray_,  after  stating  the  case,  delivered  the  opinion  of 
the   court.  "^ 

As  this  case  involves  the  constitutionality  of  a  law  of  the  United 
States,  it  is  within  the  appellate  jurisdiction  of  this  court,  notwith- 
standing the  appeal  was  taken  since  the  act  establishing  Circuit  Courts 
of  Appeals  took  effect.  Act  March  3,  1891,  c.  517,  §  5,  26  Stat.  827, 
828,  1115  (U.  S.  Comp.  St.  1901,  p.  519). 

It  is  an  accepted  maxim  of  international  law  that  every  sovereign 
nation  has  the  power,  as  inherent  in  sovereignty,  and  essential  to 
self-preservation,  to  forbid  the  entrance  of  foreigners  within  its  do- 
minions, or  to  admit  them  only  in  such  cases  and  upon  such  con- 
ditions as  it  mav  see  fit  to  prescribe.  Vat.  Law  Nat.  lib.  2,  §§  91, 
100  ;  1  Phillim.  Int.  Law  (3d  Ed.)  c.  10,  §  220.  In  the  United  States 
this  power  is  vested  in  the  national  government,  to  which  the  Con- 
stitution has  committed  the  entire  control  of  international  relations, 
in  peace  as  well  as  in  war.  It  belongs  to  the  political  department  of 
the  government,  and  may  be  exercised  either  through  treaties  made 
by  the  President  and  Senate,  or  through  statutes  enacted  by  Con- 
gress, upon  whom  the  Constitution  has  conferred  power  to  regulate 
commerce  with  foreign  nations,  including  the  entrance  of  ships,  the 
importation  of  goods,  and  the  bringing  of  persons  into  the  ports 
of  the  Ll^nited  States ;  to  establish  a  uniform  rule  of  naturalization ; 
to  declare  war,  and  to  provide  and  maintain  armies  and  navies : 
and  to  make  all  laws  which  may  be  necessary  and  proper  for  carry- 
ing into  effect  these  powers  and  all  other  powers  vested  by  the  Con- 
stitution in  the  government  of  the  L^nited  States,  or  in  any  de- 
partment or  officer  thereof.  Const,  art.  1,  §  8;  Head-Money  Cases, 
112  U.  S.  580,  5  Sup.  Ct.  217,  28  L.  Ed.  798;  Chae  Chan  Ping  v. 
U.  S.,  130  U.  S.  581,  604-609,  9  Sup.  Ct.  623,  32  L.  Ed.  1068. 

The  supervision  of  the  admission  of  aliens  into  the  United  States 
may  be  intrusted  by  Congress  either  to  the  department  of  State,  hav- 

3s  The  statement  of  the  case  is  abridged  aud  only  a  portion  of  the  opinion 
is  printed. 


G14  RELIEF   AGAINST   ADMIXLSTRATIVE   ACTION.  (Part    2 

iiii^'  the  general  management  of  foreig"n  relations,  or  to  the  Depart- 
ment of  the  Treasury,  charged  with  the  enforcement  of  the  laws 
regulating  foreign  commerce ;  and  Congress  has  often  passed  acts 
forbidding-  the  immigration  of  particular  classes  of  foreigners,  and 
has  committed  the  execution  of  these  acts  to  the  Secretary  of  the 
Treasury,  to  collectors  of  customs,  and  to  inspectors  acting  under 
their  authority.  See,  for  instance.  Act  March  3,  1875,  c.  141,  18 
Stat.  477  (U.'  S.  Comp.  St.  1901,  p.  1285);  Act  Aug.  3,  1882,  c. 
376,  23  Stat.  214  (U.  S.  Comp.  St.  1901,  p.  1288);  Act  Feb.  23, 
1887,  c.  220,  24  Stat.  414;  Act  Oct.  19.  1888,  c.  1210,  25  Stat.  56G 
(U.  S.  Comp,  St.  1901,  p.  1294);  as  well  as  the  various  acts  for  the' 
exclusion  of   the   Chinese. 

An  alien  immigrant,  prevented  from  landing  by  any  such  officer 
claiming  authority  to  do  so  under  an  act  of  Congress,  and  there- 
by restrained  of  his  liberty,  is  doubtless  entitled  to  a  writ  of  habeas 
corpus  to  ascertain  whether  the  restraint  is  lawful.  Chew  Heong 
V.  U.  S..  112  U.  S.  536,  5  Sup.  Ct.  255,  28  L.  Ed.  770;  U.  S.  v. 
Jung  Ah  Lung,  124  U.  S.  621,  8  Sup.  Ct.  663,  31  L.  Ed.  591 ;  Wan 
Shing  V.  U.  S.,  140  U.  S.  424,  11  Sup.  Ct.  729,  35  L.  Ed.  503;  Lau 
Ow  Bew,  Petitioner,  141  U.  S.  583,  12  Sup.  Ct.  43,  35  L.  Ed.  868. 
And  Congress  may,  if  it  sees  fit,  as  in  the  statutes  in  c^uestion  in 
U.  S.  V.  Jung  Ah  Lung,  just  cited,  authorize  the  courts  to  investi- 
gate and  ascertain  the  facts  on  which  the  right  to  land  depends. 
But,  on  the  other  hand,  the  final  determination  of  those  facts  may 
be  intrusted  by  Congress  to  executive  officers ;  and  in  such  a  case, 
as  in  all  others,  in  which  a  statute  gives  a  discretionary  power  to 
an  officer,  to  be  exercised  by  him  upon  his  own  opinion  of  certain 
facts,  he  is  made  the  sole  and  exclusive  judge  of  the  existence  of 
those  facts,  and  no  other  tribunal,  unless  expressly  authorized  by 
law  to  do  60,  is  at  liberty  to  re-examine  or  controvert  the  sufficiency 
of  the  evidence  on  which  he  acted.  Martin  v.  Mott,  12  Wheat.  19, 
31,  6  L.  Ed.  537 ;  Railroad  Co.  v.  Stimpson,  14  Pet.  448,  458,  10  L. 
Ed.  535;  Benson  v.  McMahon,  127  U.  S.  457,  8  Sup.  Ct.  1240,  32 
L.  Ed.  234;  In  re  Luis  Oteiza  y  Cortes,  136  U.  S.  330,  10  Sup.  Ct. 
1031,  34  L.  Ed.  464.  It  is  not  within  the  province  of  the  judiciary 
to  order  that  foreigners  who  have  never  been  naturalized,  nor  ac- 
quired any  domicile  or  residence  within  the  United  States,  nor  even 
been  admitted  into  the  country  pursuant  to  law,  shall  be  permitted 
to  enter,  in  opposition  to  the  constitutional  and  lawful  measures  of 
the  legislative  and  executive  branches  of  the  national  government. 
As  to  such  persons,  the  decisions  of  executive  or  administrative  offi- 
cers, acting  within  powers  expressly  conferred  by  Congress,  are  due 
process  of  law.  Murray  v.  Hoboken  Co.,  18  How.  272,  15  L.  Ed. 
572;  Hilton  v.  Merritt,  110  U.  S.  97,  3  Sup.  Ct.  548,  28  L.  Ed. 
83.     *     *     * 

Before  the  hearing  upon  the  writ  of  habeas  corpus,  Hatch  was 
appointed  by  the   Secretary  of   the   Treasury   inspector   of  immigra- 


Cll.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL  CONTROL.         615 

tion  at  the  port  of  San  Francisco,  and,  after  making  the  inspection 
and  examination  required  by  the  act  of  1891,  refused  to  allow  the 
petitioner  to  land,  and  made  a  report  to  the  collector  of  customs, 
stating  facts  which  tended  to  show,  and  which  the  inspector  de- 
cided did  show,  that  she  was  a  "person  likely  to  become  a  public 
charge,"  and  so  within  one  of  the  classes  of  aliens  "excluded  from 
admission  into  the  United  States"  by  the  first  section  of  that  act. 
And  Hatch  intervened  in  the  proceedings  on  the  writ  of  habeas 
corpus,  setting  up  his  decision  in  bar  of  the  writ. 

A  writ  of  habeas  corpus  is  not  like  an  action  to  recover  damages 
for  an  unlawful  arrest  or  commitment,  but  its  object  is  to  ascertain 
whether  the  prisoner  can  lawfully  be  detained  in  custody ;  and,  if 
sufficient  ground  for  his  detention  by  the  government  is  shown,  he 
is  not  to  be  discharged  for  defects  in  the  original  arrest  or  commit- 
ment. Ex  parte  Bollman,  4  Cranch,  75,  114,  125,  2  L.  Ed.  554; 
Coleman  v.  Tennessee,  97  U.  S.  509,  519,  24  L.  Ed.  1118;  U.  S. 
V.  McBratney.  104  U.  S.  621,  624,  26  L.  Ed.  869;  Kelley  v.  Thomas, 
15  Gray  (Mass.)  192;  King  v.  Marks,  3  East,  157;  Shuttleworth's 
Case,  9  O.  B.  651. 

The  case  must  therefore  turn  on  the  validity  and  effect  of  the 
action  of  Hatch  as  inspector  of  immigration. 

Section  7  of  the  act  of  1891  establishes  the  office  of  superintendent 
of  immigration,  and  enacts  that  he  "shall  be  an  officer  in  the  Treas- 
ury Department,  under  the  control  and  supervision  of  the  Secretary 
of  the  Treasury."  By  section  8,  "the  proper  inspection  officers"  are 
required  to  go  on  board  any  vessel  bringing  alien  immigrants,  and 
to  inspect  and  examine  them,  and  may  for  this  purpose  remove  and 
detain  them  on  shore,  without  such  removal  being  considered  a  land- 
ing, and  "shall  have  power  to  administer  oaths,  and  to  take  and  con- 
sider testimony  touching  the  right  of  any  such  aliens  to  enter  the 
United  States,  all  of  which  shall  be  entered  of  record."  "All  decisions 
made  by  the  inspection  officers  or  their  assistants  touching  the  right 
of  any  alien  to  land,  when  adverse  to  such  right,  shall  be  final  unless 
appeal  be  taken  to  the  superintendent  of  immigration,  whose  action 
shall  be  subject  to  review  by  the  Secretary  of  the  Treasury;"  and 
the  Secretary  of  the  Treasury  may  prescribe  rules  for  inspection' 
along  the  borders  of  Canada,  British  Columbia,  and  Mexico,  "pro- 
vided that  not  exceeding  one  inspector  shall  be  appointed  for  each 
customs    district."     *     *     * 

It  was  also  argued  that  Hatch's  proceedings  did  not  conform  to 
section  8  of  the  act  of  1891,  because  it  did  not  appear  that  he  took 
testimony  on  oath,  and  because  there  was  no  record  of  any  testi- 
mony or  of  his  decision.  But  the  statute  does  not  require  inspectors' 
to  take  any  testimony  at  all.  and  allows  them  to  decide  on  their  own 
inspection  and  examination  the  question  of  the  right  of  any  alien 
immigrant   to   land.     The   provision   relied   on   merely  empowers   in- 


616  RELIEF   AGAIXST   ADMINISTRATIVE   ACTION.  (Part    2 

specters  to  administer  oaths,  and  to  take  and  consider  testimony, 
and  requires  only  testimony  so  taken  to  be  entered  of  record. 

The  decision  of  the  inspector  of  immigration  being  in  conformity 
with  the  act  of  1891,  there  can  be  no  doubt  that  it  was  final  and 
conclusive  against  the  petitioner's  right  to  land  in  the  United  States. 
The  words  of  section  8  are  clear  to  that  effect,  and  were  manifestly 
intended  to  prevent  the  question  of  an  ahen  immigrant's  right  to 
land,  when  once  decided  adversely  by  an  inspector,  acting  within 
the  jurisdiction  conferred  upon  him,  from  being  impeached  or  re- 
viewed, in  the  courts  or  otherwise,  save  only  by  appeal  to  the  in- 
spector's official  superiors,  and  in  accordance  with  the  provisions  of 
the  act.  Section  13,  by  which  the  Circuit  and  District  Courts  of  the 
United  States  are  "invested  with  full  and  concurrent  jurisdiction 
of  all  causes,  civil  and  criminal,  arising  under  any  of  the  provisions 
of  this  act,"  evidently  refers  to  causes  of  judicial  cognizance,  al- 
ready provided  for,  whether  civil  actions  in  the  nature  of  debt  for 
penalties  under  sections  3  and  4,  or  indictments  for  misdemeanors 
under  sections  G,  8,  and  10.  Its  intention  was  to  vest  concurrent  ju- 
risdiction of  such  causes  in  the  Circuit  and  District  Courts,  and  it 
is  impossible  to  construe  it  as  giving  the  courts  jurisdiction  to  de- 
termine matters  which  the  act  has  expressly  committed  to  the  final 
determination  of   executive  officers. 

The  result  is  that  the  act  of  1891  is  constitutional  and  valid;  the 
inspector  of  immigration  was  duly  appointed ;  his  decision  against 
the  petitioner's  right  to  land  in  the  United  States  was  within  the 
authority  conferred  upon  him  by  that  act;  no  appeal  having  been 
taken  to  the  superintendent  of  immigration,  that  decision  was  final 
and  conclusive;  the  petitioner  is  not  unlawfully  restrained  of  her 
liberty;   and  the  order  of  the  Circuit  Court  is  affirmed.-'® 

Mr.  Justice  Brewer  dissented. 

3c  See  Lem  Moon  Sing  v.  United  States.  158  U.  S.  538,  15  Snp.  Ct.  0G7.  .39 
L.  Ed.  1082  (1895),  wliere  the  administrative  jurisdiction  was  lield  to  be  ex- 
clusive witli  reference  to  the  riglit  of  re-entry  of  an  alien  wlio  liad  been  dom- 
iciled in  the  United  States,  and  had  temporarily  left  the  country. 

The  Chinese  exclusion  acts  provided  for  a  judicial  hearing  (United  States 
V.  Jung  Ah  Lung.  124  U.  S.  621,  8  Sup.  Ct.  663.  31  L.  Ed.  591,  [1888]).  until 
by  Act  Aug.  18,  1894,  c.  301,  28  Stat.  390  (U.  S.  Conip.  St.  1901,  p.  1303),  the 
administrative  determination  was  made  conclusive  as  to  all  aliens ;  but  this 
did  not  apply  to  the  provision  for  the  removal  of  a  Chinese  person  found  to 
be  unlawfully  in  the  United  States.  Chin  Bak  Kan  v.  U.  S.,  186  U.  S  193, 
22  Sup.  Ct.  891,  46  D.  Ed.  1121  (1902). 

That  an  alien  may  be  summarily  deported,  see  Yamataya  v.  Fisher,  189 
U.  S.  86,  23  Sup.  Ct.  611,  47  L.  Ed.  721  (1903). 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND   JUDICIAL   CONTROL.  017 

DEBATE  IN  THE  HOUSE  OF  LORDS,  AUGUST  3,  1905,  OX 
ALIENS'  BILL. 

(Hansard,  vol.  l.jl,  p.  7.) 

Lord  Coleridge  moved  to  omit  the  appeal  by  the  immigrant  to 
the  immigration  board,  and  to  substitute  "to  the  court  of  summary 
jurisdiction  at  the  port,  and  that  court  shall,  if  they  are  satisfied 
that  leave  to  land  should  not  be  withheld  under  this  act,  give  leave 
to  land,  and  any  person  aggrieved  by  an  order,  judgment,  or  de- 
termination of  such  court  may  appeal  in  manner  provided  by  the 
summary  jurisdiction  acts  to  a  court  of  quarter  sessions."  The  sub- 
stance of  this  amendment  was  to  substitute  a  court  of  summary  ju- 
risdiction for  the  immigration  board.  In  that  he  was  following 
the  proposals  of  the  majority  report  of  the  commission,  in  which 
they  recommended  that  the  alien  immigrant  who,  within  two  years 
of  his  arrival,  was  ascertained  or  was  reasonably  supposed  to  be 
under  the  various  headings  might  be  ordered  by  a  court  of  summary 
jurisdiction  to  leave  this  country.  Under  the  bill  the  decision  would 
lie  first  of  all  with  the  immigrant  officer,  who,  of  course,  would  be 
a  man  of  no  judicial  experience.  The  only  appeal  then  w^as  to  an 
immigration  board,  consisting  of  three  persons  appointed  by  the  Sec- 
retary of  State. 

The  questions  which  this  board  would. have  to  decide  were  very 
grave  and  very  intricate.  They  would  have  to  decide  on  the  supposed 
lunacy  of  an  immigrant ;  they  would  have  to  decide  on  the  very 
nice  question  as  to  whether  the  offense  which  was  supposed  to  have 
been  committed  was  or  was  not  of  a  political  character,  a  matter 
which  called  for  the  exercise  of  a  judicial  decision;  they  would  also 
have  to  decide  under  the  succeeding  subsection  whether  or  not  he 
was  coming  to  this  country  to  avoid  prosecution  on  religious  or 
political  grounds,  another  very  nice  question.  All  these  questions 
would  have  to  be  decided,  according  to  the  provisions  of  the  bill, 
by  a  board  which  had  no  judicial  character  at  all.  There  was  no 
provision  in  the  bill  to  insure  the  proceedings  before  this  immigra- 
tion board  being  on  oath.  They  knew  that  the  Secretary  of  State 
might  provide  rules,  but  they  did  not  know  what  those  rules  would 
be.  The  amendment  would  not  in  any  sense  interfere  with  the  main 
object  of  the  bill.  It  was  only  an  administrative  alteration,  and  did 
not  in  any  way  go  to  the  root  and  principle  of  the  bill;  and  as  it 
had  been  recommended  by  the  commission  he  hoped  the  noble  and 
learned  Lord  who  presided  over  that  body  would  give  him  his  sup- 
port. He  thought  that  the  alien,  before  he  was  prevented  from  land- 
ing, should  know  that  he  had  been  considered  an  undesirable  alien 
by  a  proper  court  judically  constituted. 

Lord  Belper  hoped  the  House  would  not  accept  the  amendment. 
*     *     *     The  board  would  have  no  question  of  law  to  deal  with, 


618  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

but  questions  of  fact,  of  which  absohite  legal  proof  might  be  impossi- 
])le.  The  Secretary  of  State  had  insured,  as  far  as  he  could,  that  one 
of  those  who  were  appointed  on  the  board  should  be  a  magistrate, 
and  it  was  intended  that  as  far  as  possible  a  magistrate  should  be 
the  chairman.  The  two  other  members  were  to  be,  as  far  as  could 
be  arranged,  men  of  business  and  administrative  experience.  If  the 
amendment  of  the  noble  and  learned  Lord  were  carried,  it  would 
make  the  bill  practically  unworkable.  In  the  first  instance  the  mat- 
ter would  have  to  go  to  a  court  of  summary  jurisdiction;  but  if 
there  was  to  be  an  appeal  to  quarter  sessions,  as  in  all  cases  of  dis- 
pute there  would  be,  that  might  mean  a  delay  of  two  or  three  months. 
What  was  to  be  done  with  the  alien  who  was  landed  for  the  pur- 
pose of  this  inquiry  during  that  time?  It  would  make  the  bill  un- 
workable if  the  decision  in  his  case  were  to  be  delayed  for  any  such 
length  of  time  as  that.  For  that  reason,  and  because  His  Majesty's 
government  thought  the  body  suggested  by  the  bill  would  be  a  prop- 
er one  for  the  purpose,  he  could  not  accept  the  amendment. 
The  proposed  amendment  was  rejected  by  a  vote  of  68  to  IG. 


SECTION  78.— SAME— QUESTION  OF  ALIENAGE  AS  QUES- 
TION OF  LAW 


GONZALES  V.  WILLIAMS. 

(Supreme  Court  of  United  .States,  1904.     192  U.  S.  1,  24  Sup.  Ct.  171,  48  L. 

Ed.  317.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  South- 
ern District  of  New  York  to  review  an  order  dismissing  a  writ  of 
habeas  corpus  to  inquire  into  the  detention  by  the  immigration  com- 
missioner of  a  native  of  Porto  Rico  at  the  port  of  New  York  as  an 
alien  immigrant.  Reversed  and  remanded,  with  directions  to  discharge 
the  immigrant. 

Air.  Chief  Justice  Fuli.i;r  delivered, the  opinion  of  the  court.^^ 

This  is  an  appeal  by  Isabella  Gonzales  from  an  order  of  the  Cir- 
cuit Court  of  the  United  States  for  the  Southern  District  of  New 
York,  dismissing  a  writ  of  habeas  corpus  issued  on  her  behalf,  and 
remanding  her  to  the  custody  of  the  United  States  commissioner  of 
immigration  at  the  port  of  New  York.     118  Fed.   941. 

Isabella  Gonzales,  an  unmarried  woman,  was  born  and  resided  in 
Porto  Rico,  and  was  an  inhabitant  thereof  on  April  11,  1899,  the 
date  of  the  proclamation  of  the  Treaty  of  Paris  (30  Stat.  1754).     She 

3"  Only  a  portion  of  the  opinion  of  Fuller,  C.  J.,  is  printed. 


Ch.  9)       JURISDICTION,  CON'CLUSIVEXESS,  AND  JUDICIAL   COXTIIOL.  G19 

arrived  at  the  port  of  New  York  from  Porto  Rico  August  24,  1902, 
when  she  was  prevented  from  landing,  and  detained  by  the  immi- 
gration commissioner  at  that  port  as  an  "ahen  immigrant,"  in  order 
that  she  might  be  returned  to  Porto  Rico  if  it  appeared  that  she 
was  Hkely  to  become  a  pubHc  charge. 

If  she  was  not  an  ahcn  immigrant  within  the  intent  and  meaning  of 
the  act  of  Congress  entitled  "An  act  in  amendment  to  the  various 
acts  relative  to  immigration  and  the  importation  of  aliens  under  con- 
tract or  agreement  to  perform  labor,"  approved  March  3,  1891  (26 
Stat.  1084,  c.  551  [U.  S.  Comp.  St.  1901,  pp.  1294,  1296]),  the  com- 
missioner had  no  power  to  detain  or  deport  her,  and  the  final  order 
of  the   Circuit  Court  must  be   reversed. 

The  act  referred  to  contains  these  provisions : 

"That  the  following  classes  of  aliens  shall  be  excluded  from  admis- 
sion into  the  United  States,  in  accordance  with  the  existing  acts 
regulating  immigration,  other  than  those  concerning  Chinese  labor- 
ers :  All  idiots,  insane  persons,  paupers,  or  persons  likely  to  become 
a  public  charge.     *     *     '•' 

"Sec.  8.  That,  upon  the  arrival  by  water  at  any  place  within  the 
United  States  of  any  alien  immigrants  it  shall  be  the  duty  of  the 
commanding  officer  and  the  agents  of  the  steam  or  sailing  vessel  by 
which  they  came  to  report  the  name,  nationality,  last  residence,  and 
destination  of  every  such  alien,  before  any  of  them  are  landed,  to 
the  proper  inspection  officers.  *  *  *  All  decisions  made  by  the 
inspection  officers  or  their  assistants  touching  the  right  of  any  alien 
to  land,  when  adverse  to  such  right,  shall  be  final,  unless  appeal  be 
taken  to  the  superintendent  of  immigration,  whose  action  shall  be 
subject  to  review  by  the  Secretary  of  the  Treasury.  It  shall  be  the 
duty  of  the  aforesaid  officers  and  agents  of  such  vessel  to  adopt  due 
precautions  to  prevent  the  landing  of  any  alien  immigrant  at  any 
place  or  time  other  than  that  designated  by  the  inspection  officers, 
and  any  such  officer  or  agent  or  person  in  charge  of  such  vessel 
who  shall  either  knowingly  or  negligently  land,  or  permit  to  land, 
any  alien  immigrant  at  any  place  or  time  other  than  that  designated 
by  the  inspection  officers,  shall  be  deemed  guilty  of  a  misdemean- 
or.    *     *     * 

"Sec.  10.  That  all  aliens  who  may  unlaw^fully  come  to  the  United 
States  shall,  if  practicable,  be  immediately  sent  back  on  the  vessel 
by  which  they  were  brought  in.     *     *     * 

"Sec.  11.  That  any  alien  who  shall  come  into  the  United  States  in 
violation  of  law  may  be  returned  as  by  law  provided.     "^^     *     *  " 

The  treaty  ceding  Porto  Rico  to  the  United  States  was  ratified  by 
the  Senate  February  6,  1899 ;  Congress  passed  an  act  to  carry  out 
its  obligations  March  2,  1899  (30  Stat.  993,  c.  376);  and  the  rati- 
fications were  exchanged  and  the  treaty  proclaimed  April  11,  1899 
(30  Stat.  1754).  Then  followed  the  act  entitled  "An  act  temporarily 
to  provide   revenues   and  a   civil   government   for   Porto   Rico,  and 


(520  KELIKF   AGAINST   ADMINISTUATI VE   ACTION,  (Part    3 

for  otlier  purposes,"  approved  April   12,  1900.     31   Stat.  "17,  c.   H>1. 
:;<     *     * 

By  section  7  llie  inliabitants  of  Porto  Rico,  who  were  Spanish 
subjects  on  the  clay  the  treaty  was  proclaimed,  including-  Spaniards 
of  the  Peninsula  who  had  not  elected  to  preserve  their  allegiance  to 
the  Spanish  crown,  were  to  be  deemed  citizens  of  Porto  Rico,  and 
they  and  citizens  of  the  United  States  residing  in  Porto  Rico  were 
constituted  a  body  politic  under  the  name  of  the  People  of  Porto 
Rico. 

Gonzales  was  a  native  inhabitant  of  Porto  Rico  and  a  Spanish 
subject,  though  not  of  the  Peninsula,  when  the  cession  transferred 
her  allegiance  to  the  United  States,  and  she  was  a  citizen  of  Porto 
Rico  under  the  act.  And  there  was  nothing  expressed  in  the  act,  nor 
reasonably  to  be  implied  therefrom,  to  indicate  the  intention  of  Con- 
gress that  citizens  of  Porto  Rico  should  be  considered  as  aliens, 
and  the  right  of  free  access  denied  to  them. 

Counsel  for  the  government  contends  that  the  test  of  Gonzales' 
rights  was  citizenship  of  the  United  States,  and  not  alienage.  We 
do  not  think  so,  and,  on  the  contrary,  are  of  opinion  that,  if  Gonzales 
were  not  an  alien  within  the  act  of  1891,  the  order  below  was  errone- 
ous. 

Conceding  to  counsel  that  the  general  term  "alien,"  "citizen,"  "sub- 
ject," are  not  absolutely  inclusive,  or  completely  comprehensive,  and 
that,  therefore,  neither  of  the  numerous  definitions  of  the  term  "alien" 
is  necessarily  controlling,  we,  nevertheless,  cannot  concede,  in  view 
of  the  language  of  the  treaty  and  of  the  act  of  April  12,  1900,  that 
the  word  "alien,"  as  used  in  the  act  of  1891,  embraces  the  citizens 
of  Porto  Rico. 

We  are  not  required  to  discuss  the  power  of  Congress  in  the  prem- 
ises ;  or  the  contention  of  Gonzales'  counsel  that  the  cession  of  Porto 
Rico  accomplished  the  naturalization  of  its  people;  or  that  of  Com- 
missioner Degetau,  in  his  excellent  argument  as  amicus  curiae,  that  a 
citizen  of  Porto  Rico,  under  the  act  of  1900,  is  necessarily  a  citizen 
of  the  United  States.  The  question  is  the  narrow  one  whether  Gon- 
zales was  an  alien  within  the  meaning  of  that  term  as  used  in  the 
act  of  1891. 

The  act  excludes  from  admission  into  the  United  States,  "in  ac- 
cordance with  the  existing  acts  regulating  immigration  other  than 
those  concerning  Chinese  laborers,"  certain  classes  of  "aliens"  or 
"alien  immigrants"  arriving  at  any  place  within  the  United  States, 
in  respect  of  all  of  whom  it  is  required  that  the  commanding  officer 
and  agents  of  the  vessel  by  which  they  come  shall  report  the  name, 
nationality,  last  residence  and  destination  before  any  are  landed. 

The  decisions  of  the  inspection  officers  adverse  to  the  right  to  land 
are  made  final  unless  an  appeal  is  taken  to  the  superintendent  of 
immigration,  whose  action  is  subject  to  review  by  the  Secretary  of 
the  Treasury;    and  all  aliens  who  unlawfully  come  into  the  United 


Ch.  9)     JuniSDicTiox,  coxclusivkxess,  axd  juoicial  coxtrol.       621 

States  in  violation  of  law  shall  be  immediately,  if  practicable,  sent 
back,  or  may  be  returned  as  by  law  provided. 

We  think  it  clear  that  the  act  relates  to  foreigners  as  respects 
this  country,  to  persons  owing  allegiance  to  a  foreign  government, 
and  citizens  or  subjects  thereof,  and  that  citizens  of  Porto  Rico,  whose 
permanent  allegiance  is  due  to  the  United  'States,  who  live  in  the 
peace  of  the  dominion  of  the  United  States,  the  organic  law  of  whose 
domicile  was  enacted  by  the  United  States,  and  is  enforced  through 
officials  sworn  to  support  the  Constitution  of  the  United  States,  are 
not  "aliens,"  and  upon  their  arrival  by  water  at  the  port  of  our  main- 
land are  not  "alien  immigrants,"  within  the  intent  and  meaning  of 
the  act  of  1891.     -     *     - 

And  in  the  present  case,  as  Gonzales  did  not  come  within  the  act 
of  1S91,  the  commissioner  had  no  jurisdiction  to  detain  and  deport 
her  by  deciding  the  mere  c[uestion  of  law  to  the  contrary ;  and  she 
was  not  obliged  to  resort  to  the  superintendent  or  the  Secretary. 

Our  conclusion  is  not  affected  by  the  provision  in  the  sundry  civil 
act  of  August  18,  1894  (28  Stat.  373,  390,  c.  301  [U.  S.  Comp.  St. 
1901,  p.  1303]),  in  relation  to  the  finality  of  the  decision  of  the  appro- 
priate immigration  or  custom  officers,  or  the  similar  provision  in 
the  act  "to  regulate  the  immigration  of  aliens  into  the  United  States," 
approved  ^larch  3,  1903  (32  Stat.  1213,  c.  1012  [U.  S.  Comp.  St. 
Supp.  1903,  p.  170]).  The  latter  act  was  approved  after  the  Gon- 
zales litigation  was  moved,  but  it  is  worthy  of  notice  that  the  words 
"United  States"  as  used  in  the  title  and  throughout  the  act  were  re- 
quired to  be  construed  to  mean  "the  United  States  and  any  waters, 
territory,  or  other  place  now  subject  to  the  jurisdiction  thereof." 
Section  33.  The  definition  indicates  the  view  of  Congress  on  the  gen- 
eral subject. 

Gonzales  was  not  a  passenger  from  a  foreign  port,  and  was  a 
passenger  "from  territory  or  other  place"  subject  to  the  jurisdic- 
tion of  the  United  States. 

In  order  to  dispose  of  the  case  in  hand,  we  do  not  find  it  nec- 
essary to  review  the  Chinese  exclusion  acts  and  the  decisions  of  this 
court  thereunder. 

Final   order   reversed,   and   cause    remanded,   with   a   direction  to 


G22  RELIEF   AGAINST   ADMINISTKATIVE   ACTION.  (Part    2 


SECTION  79.— SAME— QUESTION  OF  ALIENAGE  AS  OUES-  11 

TION  OK  FACT  '' 


UNITED  STATES  v.  SING  TUCK  et  al. 

(Snproine  Court  of  United  States,  1904.     104  U.   S.  101,  24  Snp.  Ct.  G21.  48 
L.  Ell.  917.) 

On  writ  of  certiorari  to  the  United  States  Circuit  Court  of  Appeals 
for  the  Second  Circuit  to  review  a  judgment  which  reversed  a  judg- 
ment of  the  Circuit  Court  for  the  Northern  District  of  New  York 
dismissing-  a  writ  of  habeas  corpus  to  inquire  into  a  detention  of 
Chinese  persons  seeking  to  enter  the  United  States,  and  claiming- 
citizenship   therein.      Reversed. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  habeas  corpus  against  a  Chinese  inspector  and 
inspector  of  immigration.  It  appears  from  his  return  that  the  Chi- 
nese persons  concerned  came  from  China  by  way  of  Canada,  and 
were  seeking  admission  into  the  United  States.  On  examination  by 
an  inspector  five  gave  their  names,  stated  that  they  were  born  in  the 
United  States  (United  States  v.  Wong  Kim  Ark,  169  U.  S.  6iO, 
18  Sup.  Ct.  456,  43  L.  Ed.  890),  and  answered  no  further  questions. 
The  rest  gave  their  names  and  then  stood  mute,  not  even  alleging 
citizenship.  The  inspector  decided  against  their  right  to  enter  the 
country,  and  informed  them  of  their  right  to  appeal  to  the  Secre- 
tary of  Commerce  and  Labor,  No  appeal  was  taken,  and  while  they 
were  detained  at  a  properly  designated  detention  house  for  return 
to  China,  a  petition  was  filed  by  a  lawyer  purporting  to  act  on  their 
behalf,  alleging  that  they  all  were  citizens  of  the  United  States, 
and  this  writ  was  obtained.  In  the  Circuit  Court  the  detention  was 
adjudged  to  be  lawful,  and  the  writ  was  dismissed  without  a  trial 
on  the  merits.  This  decision  was  reversed  by  the  Circuit  Court  of 
Appeals  on  the  ground  that  the  parties  concerned  were  entitled  to  a 
judicial  investigation  of  their  status. 

By  Act  August  18,  1894,  c.  301,  28  Stat.  390  (U.  S.  Comp.  St. 
1901,  p.  1303),  "in  every  case  where  an  alien  is  excluded  from  admis- 
sion into  the  United  States  under  any  law  or  treaty  now  existing 
or  hereafter  made,  the  decision  of  the  appropriate  immigration  or 
customs  officers,  if  adverse  to  the  admission  of  such  alien,  shall  be 
final,  unless  reversed  on  appeal  to  the  Secretary  of  the  Treasury." 
The  jurisdiction  of  the  Treasury  Department  was  transferred  to  the 
Department  of  Commerce  and  Labor  by  Act  Feb.  14,  1903,  c.  552, 
32  Stat.  825  (U.  S.  Comp.  St.  Supp.  1909,  p.  87).  It  was  held  by 
the  Circuit  Court  of  Appeals  that  the  act  of  1894  should  not  be  con- 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND   JUDICIAL   CONTROL.  G23 

strued  to  submit  the  right  of  a  native-born  citizen  of  the  United 
States  to  return  hither  to  the  final  determination  of  executive  ofii- 
cers,  and  the  conclusion  was  assumed  to  follow  that  these  cases  should 
have  been  tried  on  their  merits.  Before  us  it  was  argued  that,  by 
the  construction  of  the  statute,  the  fact  of  citizenship  went  to  the 
jurisdiction  of  the  immigration  officers  (see  Gonzales  v.  Williams, 
193  U.  S.  1,  7,  24  Sup.  Ct.  177,  48  L.  Ed.  317;  Miller  v.  Horton, 
152  Mass.  540,  548,  26  N.  E.  100,  10  L.  R.  A.  116,  23  Am.  St.  Rep. 
850),  and  therefore  that  the  statute  did  not  purport  to  apply  to  one 
who  was  a  citizen  in  fact.  We  are  of  opinion,  however,  that  the 
words  quoted  apply  to  a  decision  on  the  question  of  citizenship,  and 
that,  even  if  it  be  true  that  the  statute  could  not  make  that  deci- 
sion final,  the  consequence  drawn  by  the  Circuit  Court  of  Appeals 
does  not   follow,  and  is   not  correct. 

We  shall  not  argue  the  meaning  of  the  words  of  the  act.  That 
must  be  taken  to  be  established.  Lem  Moon  Sing  v.  United  States, 
158  U.  S.  538,  546,  547,  15  Sup.  Ct.  967,  39  L.  Ed.  1082,  1085.  As 
to  whether  or  not  the  act  could  make  the  decision  of  an  executive 
officer  final  upon  the  fact  of  citizenship,  we  leave  the  question  where 
we  find  it.  Japanese  Immigrant  Case,  189  U.  S.  86,  97,  23  Sup.  Ct. 
611,  47  L.  Ed.  721,  724;  Fok  Young  Yo  v.  United  States,  185  U. 
S.  296,  304,  305,  22  Sup.  Ct.  686,  46  L.  Ed.  917,  921.  See  Chin 
Bak  Kan  v.  United  States,  186  U.  S.  193,  200,  22  Sup.  Ct.  891,  46  L. 
Ed.  1121,  1126.  Whatever  may  be  the  law  on  that  point,  the  deci- 
sions just  cited  are  enough  to  show  that  it  is  too  late  to  contend 
that  the  act  of  1894  is  void  as  a  whole.  But  if  the  act  is  valid,  even 
if  ineffectual  on  this  single  point,  then  it  points  out  a  mode  of  pro- 
cedure which  must  be  followed  before  there  can  be  a  resort  to  the 
courts.  In  order  to  act  at  all  the  executive  officer  must  decide  upon 
the  question  of  citizenship.  If  his  jurisdiction  is  subject  to  being 
upset,  still  it  is  necessary  that  he  should  proceed  if  he  decides  that 
it  exists.  An  appeal  is  provided  by  the  statute.  The  first  mode  of 
attacking  his  decision  is  by  taking  that  appeal.  If  the  appeal  fails, 
it  then  is  time  enough  to  consider  whether,  upon  a  petition  showing 
reasonable  cause,  there  ought  to  be  a  further  trial  upon  habeas  cor- 
pus. 

We  perfectly  appreciate,  while  we  neither  countenance  nor  dis- 
countenance, the  argument  drawn  from  the  alleged  want  of  juris- 
diction. But  while  the  consequence  of  that  argument,  if  sound,  is 
that  both  executive  officers  and  Secretary  of  Commerce  and  Labor 
are  acting  without  authority,  it  is  one  of  the  necessities  of  the  ad- 
ministration of  justice  that  even  fundamental  questions  should  be 
determined  in  an  orderly  way.  If  the  allegations  of  a  petition  for 
habeas  corpus  setting  up  want  of  jurisdiction,  whether  of  an  ex- 
ecutive officer  or  of  an  ordinary  court,  are  true,  the  petitioner  the- 
oretically is  entitled  to  his  liberty  at  once.  Yet  a  summary  inter- 
ruption of  the  regular  order  of  proceedings,  by  means  of  the  writ, 


G24  KELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

is  not  always  a  matter  of  right.  A  familiar  illustration  is  that  of  a 
person  imprisoned  upon  criminal  process  by  a  state  court,  under  a 
state  law  alleged  to  be  unconstitutional.  If  the  law  is  unconstitu- 
tional the  prisoner  is  wrongfully  held.  Yet,  except  under  exceptional 
circumstances,  the  courts  of  the  United  States  do  not  interfere  by 
habeas  corpus.  The  prisoner  must,  in  the  first  place,  take  his  case 
to  the  highest  court  of  the  state  to  which  he  can  go,  and  after  that 
he  generally  is  left  to  the  remedy  by  writ  of  error  if  he  wishes  to 
bring  the  case  here.  Minnesota  v.  Brundage,  180  U.  S.  499,  21 
Sup.  Ct.  455,  45  L.  Ed.  639.  Baker  v.  Grice,  169  U.  S.  284,  18  Sup. 
Ct.  323,  42  L.  Ed.  748.  In  Gonzales  v.  Williams,  192  U.  S.  1,  24 
Sup.  Ct.  177,  48  L.  Ed.  317,  there  was  no  use  in  delaying  the  issue 
of  the  writ  until  an  appeal  had  been  taken,  because  in  that  case  there 
was  no  dispute  about  the  facts,  but  merely  a  question  of  law.  Here 
the  issue,  if  there  is  one,  is  pure  matter  of  fact — a  claim  of  'citizen- 
ship under  circumstances  and  in  a  form  naturally  raising  a  suspicion 
of  fraud. 

Considerations  similar  to  those  which  we  have  suggested  lead  to 
a  further  conclusion.  Whatever  may  be  the  ultimate  rights  of  a 
person  seeking  to  enter  the  country,  and  alleging  that  he  is  a  citi- 
zen, it  is  within  the  power  of  Congress  to  provide,  at  least,  for  a  pre- 
liminary investigation  by  an  inspector,  and  for  a  detention  of  the 
person  until  he  has  established  his  citizenship  in  some  reasonable 
way.  If  the  person  satisfies  the  inspector,  he  is  allowed  to  enter 
the  country  without  further  trial.  Now,  when  these  Chinese,  hav- 
ing that  opportunity,  saw  fit  to  refuse  it,  we  think  an  additional  rea- 
son was  given  for  not  allowing  a  habeas  corpus  at  that  stage.  The 
detention  during  the  time  necessary  for  investigation  was  not  unlaw- 
ful, even  if  all  these  parties  were  citizens  of  the  United  States,  and 
were  not  attempting  to  upset  the  inspection  machinery  by  a  transparent 
device.  Wong  Wing  v.  United  States,  163  U.  S.  228,  235,  16  Sup. 
Ct.  9T7,  41  L.  Ed.  140.  They  were  offered  a  way  to  prove  their 
alleged  citizenship  and  to  be  set  at  large,  which  would  be  sufficient 
for  most  people  who  had  a  case,  and  which  would  relieve  the  courts. 
If  they  saw  fit  to  refuse  that  way,  they  properly  were  held  down 
strictly  to  their  technical  rights. 

But  it  is  said  that  if,  under  any  circumstances,  the  question  of 
citizenship  could  be  left  to  the  final  decision  of  an  executive  officer, 
the  Chinese  regulations  made  under  the  statutes  by  the  Department 
of  Commerce  and  Labor  are  such  that  they  do  not  allow  a  citizen 
due  process  of  law%  and  the  same  argument  is  urged  in  favor  of  the 
right  to  decline  to  take  any  part  in  such  proceedings  from  the  out- 
set. The  rules  objected  to  require  the  officer  to  prevent  communi- 
cation with  the  parties  other  than  by  officials  under  his  control,  and 
to  have  them  examined  promptly  touching  their  right  to  admission. 
The  examination  is  to  be  apart  from  the  public,  in  the  presence  of 
the  government  officials  and   such   witnesses  only  as  the  examining 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL   CONTROL.  G25 

officer  shall  designate.  This  last  is  the  provision  especially  stigmatized. 
It  is  said  that  the  parties  are  allowed  to  produce  only  such  wit- 
nesses as  are  designated  by  the  officer.  But  that  is  a  plain  perver- 
sion of  the  meaning  of  the  words.  If  the  witnesses  referred  to  are 
not  merely  witnesses  to  the  examination,  if  they  are  witnesses  in 
the  cause,  still  the  provision  only  excludes  such  witnesses  at  the 
discretion  of  the  officer  pending  the  examination  of  the  party  con- 
cerned— a  natural  precaution  in  this  class  of  cases,  the  reasonable- 
ness of  which  does  not  need  to  be  explained.  It  is  common  in 
ordinary  trials.  No  right  is  given  to  the  officer  to  exercise  any 
control  or  choice  as  to  the  witnesses  to  be  heard,  and  no  such  choice 
was  attempted  in  fact.  On  the  contrary,  the  parties  were  told  that 
if  they  could  produce  two  witnesses  who  knew  that  they  had  the 
right  to  enter,  their  testimony  would  be  taken  and  carefully  considered ; 
and  various  other  attempts  were  made  to  induce  the  suggestion  of 
any  evidence  or  help  to  establish  the  parties'  case,  but  they  stood  mute. 
The  separate  examination  is  another  reasonable  precaution,  and  it  is 
required  to  take  place  promptly,  to  avoid  the  hardship  of  a  long  de- 
tention. In  case  of  appeal  counsel  are  permitted  to  examine  the  evi- 
dence (rule  7),  and  it  is  implied  that  new  evidence,  briefs,  affidavits, 
and  statements  may  be  submitted,  all  of  which  can  be  forwarded  with 
the  appeal  (rule  9).  The  whole  scheme  is  intended  to  give  as  fair  a 
chance  to  prove  a  right  to  enter  the  country  as  the  necessarily  sum- 
mary character  of  the  proceedings  will  permit. 

We  are  of  opinion  that  the  attempt  to  disregard  and  override  the 
provisions  of  the  statutes  and  the  rules  of  the  department,  and  to 
swamp  the  courts  by  a  resort  to  them  in  the  first  instance,  must  fail. 
We  may  add  that,  even  if  it  is  beyond  the  power  of  Congress  to  make 
the  decision  of  the  department  final  upon  the  question  of  citizenship, 
we  agree  with  the  Circuit  Court  of  Appeals  that  a  petition  for  habeas 
corpus  ought  not  to  be  entertained  unless  the  court  is  satisfied  that  the 
petitioner  can  make  out  at  least  a  prima  facie  case.  A  mere  allega- 
tion of  citizenship  is  not  enough.  But,  before  the  courts  can  be  called 
upon,  the  preliminary  sifting  process  provided  by  the  statutes  must 
be  gone  through  with.  Whether  after  that  a  further  trial  may  be  had 
we  do  not  decide. 

Judgment  reversed. 

Mr.  Justice  Brewer  and  Mr.  Justice  Peckham  dissented. 


UNITED  STATES  v.  JU  TOY. 

(Supreme  Court  of  the  United  States,  1905.     198  U.  S.  253,  25  Sup.  Ct.  G44, 
49  L.  Ed.  1040.) 

On  a  certificate  from  the  United  States  Circuit  Court  of  Appeals 
for  the  Ninth  Circuit  presenting  the  question  whether  habeas  corpus 
Fk.Adm.La.w — 40 


C26  RELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

should  be  granted  in  behalf  of  a  person  of  Chinese  descent  whose 
right  to  enter  the  United  States  has  been  denied  by  the  immigration 
officers  and  affirmed  on  appeal  by  the  Secretary  of  Commerce  and  La- 
bor, and  citizenship  is  the  only  ground  alleged  as  making  the  detention 
unlawful,  and  whether,  under  such  circumstances,  the  writ  should  be 
dismissed  or  a  further  hearing  be  granted,  and  whether  the  decision 
of  the  Secretary  of  Commerce  and  Labor  is  conclusive,  in  the  absence 
of  abuse  of  authority.  The  first  question  answered  in  the  negative, 
the  third  in  the  affirmative,  and  the  second  by  stating  that  the  writ 
should  be  dismissed. 

Mr.  Justice  HolmUS  delivered  the  opinon  of  the  court. 

This  case  comes  here  on  a  certificate  from  the  Circuit  Court  of  Ap- 
peals presenting  certain  questions  of  law.  It  appears  that  the  appellee, 
being  detained  by  the  master  of  the  steamship  Doric  for  return  to 
China,  presented  a  petition  for  habeas  corpus  to  the  District  Court, 
alleging  that  he  was  a  native-born  citizen  of  the  United  States,  return- 
ing after  a  temporary  departure,  and  was  denied  permission  to  land 
by  the  collector  of  the  port  of  San  Francisco.  It  also  appears  from 
the  petition  that  he  took  an  appeal  from  the  denial,  and  that  the  deci- 
sion was  affirmed  by  the  Secretary  of  Commerce  and  Labor.  No  fur- 
ther grounds  are  stated.  The  writ  issued,  and  the  United  States  made 
return,  and  answered,  showing  all  the  proceedings  before  the  depart- 
ment, which  are  not  denied  to  have  been  in  regular  form,  and  setting 
forth  all  of  the  evidence  and  the  orders  made.  The  answer  also  de- 
nied the  allegations  of  the  petition.  Motions  to  dismiss  the  writ  were 
made  on  the  grounds  that  the  decision  of  the  Secretary  was  conclu- 
sive, and  that  no  abuse  of  authority  was  shown.  These  were  denied, 
and  the  District  Court  decided,  seemingly  on  new  evidence,  subject  to 
exceptions,  that  Ju  Toy  was  a  native-born  citizen  of  the  United  States. 
An  appeal  was  taken  to  the  Circuit  Court  of  Appeals,  alleging  errors 
the  nature  of  which  has  been  indicated.  Thereupon  the  latter  court 
certified  the  following  questions : 

"First.  Should  a  District  Court  of  the  United  States  grant  a  writ  of 
habeas  corpus  in  behalf  of  a  person  of  Chinese  descent  being  held  for 
return  to  China  by  the  steamship  company  which  brought  him  there- 
from, who,  having  recently  arrived  at  a  port  of  the  United  States, 
made  application  to  land  as  a  native-born  citizen  thereof,  and  who, 
after  examination  by  the  duly  authorized  immigration  officers,  was 
found  by  them  not  to  have  been  born  in  the  United  States,  was  denied 
admission,  and  ordered  deported,  which  finding  and  action  upon  ap- 
peal was  affirmed  by  the  Secretary  of  Commerce  and  Labor,  when  the 
foregoing  facts  appear  to  the  court,  and  the  petition  for  the  writ 
alleges  unlawful  detention  on  the  sole  ground  that  petitioner  does  not 
come  within  the  restrictions  of  the  Chinese  exclusion  acts,  because 
born  in  and  a  citizen  of  the  United  States,  and  does  not  allege  or  show 
in  any  other  way  unlawful  action  or  abuse  of  their  discretion  or  pow- 
ers by  the  immigration  officers  who  excluded  him? 


Ch.  9)      JURISDICTION,  COXCLUSIVEXESS,  AND  JUDICIAL  CONTROL.         G27 

"Second.  In  a  habeas  corpus  proceeding-  should  a  District  Court  of 
the  United  States  dismiss  the  writ,  or  should  it  direct  a  new  or  further 
hearing  upon  evidence  to  be  presented  where  the  writ  had  been  granted 
in  behalf  of  a  person  of  Chinese  descent  being  held  by  the  steamship 
company  for  return  to  China,  from  whence  it  brought  him,  who  re- 
cently arrived  from  that  country,  and  asked  permission  to  land,  upon 
the  ground  that  he  was  born  in  and  was  a  citizen  of  the  United  States, 
when  the  uncontradicted  return  and  answer  show  that  such  person 
was  granted  a  hearing  by  the  proper  immigration  officers,  who  found 
he  was  not  born  in  the  United  States,  that  his  application  for  admission 
was  considered  and  denied  by  such  officers,  and  that  the  denial  was 
affirmed  upon  appeal  to  the  Secretary  of  Commerce  and  Labor,  and 
where  nothing  more  appears  to  show  that  such  executive  officers  failed 
to  g-rant  a  proper  hearing,  abused  their  discretion,  or  acted  in  any  un- 
lawful or  improper  way  upon  the  case  presented  to  them  for  deter- 
mination ? 

"Third.  In  a  habeas  corpus  proceeding  in  a  District  Court  of  the 
United  States,  instituted  in  behalf  of  a  person  of  Chinese  descent  be- 
ing held  for  return  to  China  by  the  steamship  company  which  recently 
brought  him  therefrom  to  a  port  of  the  United  States,  and  who  ap- 
plied for  admission  therein  upon  the  ground  that  he  was  a  native-born 
citizen  thereof,  but  who,  after  a  hearing,  the  lawfully  designated  im- 
migration officers  found  was  not  born  therein,  and  to  whom  they  de- 
nied admission,  which  finding  and  denial,  upon  appeal  to  the  Secre- 
tary of  Commerce  and  Labor,  was  affirmed — should  the  court  treat  the 
finding  and  action  of  such  executive  officers  upon  the  question  of 
citizenship  and  other  questions  of  fact  as  having  been  made  by  a  tri- 
bunal authorized  to  decide  the  same,  and  as  final  and  conclusive  unless 
it  be  made  affirmatively  to  appear  that  such  officers,  in  the  case  sub- 
mitted to  them,  abused  the  discretion  vested  in  them,  or,  in  some  other 
way,  in  hearing  and  determining  the  same,  committed  prejudicial 
error  ?" 

We  assume  in  what  we  have  to  say,  as  the  questions  assume,  that  no 
abuse  of  authority  of  any  kind  is  alleged.  That  being  out  of  the  case, 
the  first  of  them  is  answered  by  the  case  of  United  States  v.  Sing 
Tuck,  194  U.  S.  161,  170,  24  Sup.  Ct.  G21,  48  L.  Ed.  917,  931 :  "A  pe- 
tition for  habeas  corpus  ought  not  to  bt  entertained  unless  the  court 
is  satisfied  that  the  petitioner  can  make  out  at  least  a  prima  facie  case." 
This  petition  should  have  been  denied  on  this  ground,  irrespective  of 
what  more  we  have  to  say,  because  it  alleged  nothing  except  citizen- 
ship. It  disclosed  neither  abuse  of  authority  nor  the  existence  of  evi- 
dence not  laid  before  the  Secretary.  It  did  not  even  set  forth  that 
evidence,  or  allege  its  effect.  But,  as  it  was  entertained,  and  the  Di.  - 
trict  Court  found  for  the  petitioner,  it  would  be  a  severe  measure  to 
order  the  petition  to  be  dismissed  on  that  ground  now,  and  we  pass 
on  to  further  considerations. 


(528  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

The  broad  question  is  presented  whether  or  not  the  decision  of  the 
Secretary  of  Commerce  and  Labor  is  conchisive.  It  was  held  in 
United  States  v.  Sing  Tuck,  194  U.  S.  161,  1C7,  24  Sup.  Ct.  621,  48 
L.  Ed.  917,  920,  that  Act  Aug.  18,  1894,  c.  301,  §  1,  28  Stat.  372,  390, 
(U.  S.  Comp.  St.  1901,  p.  1303),  purported  to  make  it  so,  but  whether 
the  statute  could  have  that  effect  constitutionally  was  left  untouched, 
except  by  a  reference  to  cases  where  an  opinion  already  had  been  ex- 
pressed. 

To  quote  the  latest  first,  in  Japanese  Immigrant  Case  (Yamataya  v. 
Fisher)  189  U.  S.  86,  97,  23  Sup.  Ct.  611,  613,  47  L.  Ed.  721,  724, 
it  was  said :  "That  Congress  may  exclude  aliens  of  a  particular  race 
from  the  United  States,  prescribe  the  terms  and  conditions  upon  which 
certain  classes  of  aliens  may  come  to  this  country,  establish  regula- 
tions for  sending  out  of  the  country  such  aliens  as  come  here  in  vio- 
lation of  law,  and  commit  the  enforcement  of  such  provisions,  condi- 
tions, and  regulations  exclusively  to  executive  officers,  without  judi- 
cial intervention,  are  principles  firmly  established  by  the  decisions  of 
this  court."  See,  also,  United  States  ex  rel.  Turner  v.  Williams,  194 
U.  S.  279,  290,  291,  24  Sup.  Ct.  719,  48  E.  Ed.  979,  983,  984;  Chin 
Bak  Kan  v.  United  States,  186  U.  S.  193,  200,  22  Sup.  Ct.  891,  46 
L.  Ed.  1121,  1125.  In  Fok  Young  Yo  v.  United  States,  185  U.  S.  296, 
304,  305,  22  Sup.  Ct.  686,  46  L.  Ed.  917,  921,  it  was  held  that  the 
decision  of  the  collector  of  customs  on  the  right  of  transit  across  the 
territory  of  the  United  States  was  conclusive,  and,  still  more  to  the 
point,  in  Lem  Moon  Sing  v.  United  States,  158  U.  S.  538,  15  Sup.  Ct. 
967,  39  L.  Ed.  1082,  where  the  petitioner  for  habeas  corpus  alleged 
facts  which,  if  true,  gave  him  a  right  to  enter  and  remain  in  the  coun- 
try, it  was  held  that  the  decision  of  the  collector  was  final  as  to  wheth- 
er or  not  he  belonged  to  the  privileged  class. 

It  is  true  that  it  may  be  argued  that  these  cases  are  not  directly 
conclusive  of  the  point  now  under  decision.  It  may  be  said  that  the 
parties  concerned  were  aliens,  and  that  although  they  alleged  absolute 
rights,  and  facts  which  it  was  contended  went  to  the  jurisdiction  of  the 
officer  making  the  decision,  still  their  rights  were  only  treaty  or  stat- 
utory rights,  and  therefore  were  subject  to  the  implied  qualification 
imposed  by  the  later  statute,  which  made  the  decision  of  the  collector 
with  regard  to  them  final.  The  meaning  of  the  cases,  and  the  lan- 
guage which  we  have  quoted,  is  not  satisfied  by  so  narrow  an  interpre- 
tation, but  we  do  not  delay  upon  them.    They  can  be  read. 

It  is  established,  as  we  have  said,  that  the  act  purports  to  make  the 
decision  of  the  department  final,  whatever  the  ground  on  which  the 
right  to  enter  the  country  is  claimed — as  well  when  it  is  citizenship  as 
when  it  is  domicile,  and  the  belonging  to  a  class  excepted  from  the  ex- 
clusion acts.  United  States  v.  Sing  Tuck,  194  U.  S.  161,  167,  24  Sup. 
Ct.  621,  48  L.  Ed.  917,  920;  Eeni  Moon  Sing  v.  United  States.  158 
U.  S.  538,  546,  547,  15  Sup.  Ct.  967,  39  L.  Ed.  1082.  It  also  is  es- 
tablished by  the  former  case  and  others  which  it  cites  that  the  rele- 


Cll.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL  CONTROL.         G29 

vant  portion  of  the  act  of  August  18,  1894,  c.  301,  28  Stat.  372  (U. 
S.  Comp.  St.  1901,  p.  1303)  is  not  void  as  a  whole.  The  statute  has 
been  upheld  and  enforced.  But  the  relevant  portion  being  a  single 
section,  accomplishing  all  its  results  by  the  same  general  words,  must 
be  valid  as  to  all  that  it  embraces,  or  altogether  void.  An  exception 
of  a  class  constitutionally  exempted  cannot  be  read  into  those  general 
words  merely  for  the  purpose  of  saving  what  remains.  That  has  been 
decided  over  and  over  again.  United  States  v.  Reese,  92  U.  S.  214, 
221,  23  L.  Ed.  563,  565;  Trade-Mark  Cases,  100  U.  S.  82,  98,  99,  25 
L.  Ed.  550,  553,  554 ;  Allen  v.  Louisiana,  103  U.  S.  80,  84,  26  L.  Ed. 
318,  319 ;  United  States  v.  Harris,  106  U.  S.  629,  641,  642,  1  Sup.  Ct. 
601,  27  L.  Ed.  290,  294,  295 ;  Poindexter  v.  Greenhow,  114  U.  S.  270, 
305,  5  Sup.  Ct.  903,  962,  29  L.  Ed.  185,  197;  Baldwin  v.  Franks,  120 
U.  S.  678,  685-689,  7  Sup.  Ct.  656,  763,  30  L.  Ed.  766,  768,  769; 
Smiley  v.  Kansas,  196  U.  S.  447,  455,  25  Sup.  Ct.  289,  49  L.  Ed.  546. 
It  necessarily  follows  that  when  such  words  are  sustained,  they  are 
sustained  to  their  full  extent. 

In  view  of  the  cases  which  we  have  cited  it  seems  no  longer  open  to 
discuss  the  question  propounded  as  a  new  one.  Therefore  we  do  not 
analyze  the  nature  of  the  right  of  a  person  presenting  himself  at  the 
frontier  for  admission.  In  re  Ross  (Ross  v.  Mclntyre),  140  U,  S.  453, 
464,  11  Sup.  Ct.  897,  35  L.  Ed.  581,  586.  But  it  is  not  improper  to 
add  a  few  words.  The  petitioner,  although  physically  within  our 
boundaries,  is  to  be  regarded  as  if  he  had  been  stopped  at  the  limit  of 
our  jurisdiction,  and  kept  there  while  his  right  to  enter  was  under 
debate.  If,  for  the  purpose  of  argument,  we  assume  that  the  fifth 
amendment  applies  to  him,  and  that  to  deny  entrance  to  a  citizen  is  tO 
deprive  him  of  liberty,  we  nevertheless  are  of  opinion  that  with  re- 
gard to  him  due  process  of  law  does  not  require  judicial  trial.  That  is 
the  result  of  the  cases  which  we  have  cited,  and  the  almost  necessary 
result  of  the  power  of  Congress  to  pass  exclusion  laws.  That  the  de- 
cision may  be  intrusted  to  an  executive  officer,  and  that  his  decision 
is  due  process  of  law,  was  affirmed  and  explained  in  Nishimura  Ekiu 
V.  United  States,  142  U.  S.  651,  660,  12  Sup.  Ct.  336,  35  L.  Ed.  1146, 
1149,  and  in  Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  713,  13 
Sup.  Ct.  1016,  37  L.  Ed.  905,  913,  before  the  authorities  to  which  we 
already  have  referred.  It  is  unnecessary  to  repeat  the  often-quoted  re- 
marks of  Mr.  Justice  Curtis,  speaking  for  the  whole  court  in  Den 
ex  dem.  Murray  v.  Hoboken  Land  &  Improv.  Co.,  18  How.  272,  280, 
15  L.  Ed.  372,  376,  to  show  that  the  requirement  of  a  judicial  trial 
does  not  prevail  in  every  case.  Lem  Moon  Sing  v.  United  States,  158 
U.  S.  538,  546,  547,  15  Sup.  Ct.  967,  39  L.  Ed.  1082,  1085 ;  Japanese 
Immigrant  Case  (Yamataya  v.  Fisher),  189  U.  S.  86,  100,  23  Sup.  Ct. 
611,  47  L.  Ed.  721,  725 ;  Public  Clearing  House  v.  Coyne,  194  U.  S. 
497,  508,  509,  24  Sup.  Ct.  Rep.  789,  48  L.  Ed.  1092,  1098. 

We  are  of  opinion  that  the  first  question  should  be  answered,  no; 
that  the  third  question  should  be  answered,  yes,  with  the  result  that 


030  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

the  second  question  should  be  answered  that  the  writ  should  be  dis- 
missed, as  it  should  have  been  dismissed  in  this  case. 

It  will  be  so  certified. 

Mr.  Justice  Bkicwer  dissented. 


CHIN  YOW  V.  tmiTED  STATES. 

(Supreme  Court  of  the  United   States.   1908.     208  U.  S.  8,  28  Sup.   Ct.  201, 
r>2  L.  Ed.  3G9.) 

Appeal  from  the  District  Court  of  the  United  States  for  the  North- 
ern District  of  California  to  review  an  order  denying  the  petition  for 
a  writ  of  habeas  corpus  in  behalf  of  a  Chinese  person  in  the  custody 
of  a  steamship  company  for  deportation.  Reversed  with  directions 
to  issue  the  writ. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  a  petition  for  habeas  corpus  by  a  Chinese  person,  alleging 
that  he  is  detained  unlawfully  by  the  general  manager  of  the  Pacific 
Mail  Steamship  Company  on  the  ground  that  he  is  not  entitled  to 
enter  t]ie  United  States.  The  petition  alleges  that  the  petitioner  is  a 
resident  and  citizen  of  the  United  States,  born  in  San  Francisco  of 
parents  domiciled  there,  but  it  discloses  that  the  commissioner  of  im- 
migration at  the  port  of  San  Francisco,  after  a  hearing,  denied  his 
right  to  land,  and  that  the  Department  of  Commerce  and  Labor  af- 
firmed the  decision  on  appeal.  The  petitioner  thereupon  was  placed 
in  custody  of  the  steamship  company  to  be  sent  to  China.  So  far  the 
case  is  within  United  States  v.  Ju  Toy,  198  U.  S.  253,  25  Sup.  Ct.  644, 
49  L.  Ed.  1040,  and  the  petition  was  dismissed  for  want  of  jurisdic- 
tion (presumably  on  the  ground  of  that  decision),  as  sufficiently  ap- 
pears from  the  record,  the  reasons  assigned  for  the  appeal,  and  the 
order  allowing  the  same. 

But  the  petition  further  alleges  that  the  petitioner  was  prevented 
by  the  officials  of  the  commisioner  from  obtaining  testimony,  including 
that  of  named  witnesses,  and  that  had  he  been  given  a  proper  oppor- 
tunity he  could  have  produced  overwhelming  evidence  that  he  was 
born  in  the  United  States  and  remained  there  until  1904,  when  he 
departed  to  China  on  a  temporary  visit.  We  do  not  scrutinize  the  alle- 
gations as  if  they  were  contained  in  a  criminal  indictment  before  the 
court  upon  a  special  demurrer,  but  without  further  detail  read  them 
as  importing  that  the  petitioner  arbitrarily  was  denied  such  a  hearing, 
and  such  an  opportunity  to  prove  his  right  to  enter  the  country,  as 
the  statute  meant  that  he  should  have.  The  question  is  whether  he 
is  entitled  to  a  writ  of  habeas  corpus  on  such  a  case  as  that. 

Of  course,  if  the  writ  is  granted,  the  first  issue  to  be  tried  is  the 
truth  of  the  allegations  last  mentioned.  If  the  petitioner  was  not 
denied  a  fair  opportunity  to  produce  the  evidence  that  he  desired,  or 


Ch.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL  CONTROL.         G31 

a  fair  though  summary  hearing,  the  case  can  proceed  no  farther.  Those 
facts  are  the  foundation  of  the  jurisdiction  of  the  District  Court,  if 
it  has  any  jurisdiction  at  all.  It  must  not  be  supposed  that  the  mere 
alleg-ation  of  the  facts  opens  the  merits  of  the  case,  whether  those 
facts  are  proved  or  not.  And,  by  way  of  caution,  we  may  add  that 
jurisdiction  would  not  be  established  simply  by  proving  that  the  com- 
missioner and  the  Department  of  Commerce  and  Labor  did  not  ac- 
cept certain  sworn  statements  as  true,  even  though  no  contrary  or  im- 
peaching testimony  was  adduced.  But,  supposing  that  it  could  be 
shown  to  the  satisfaction  of  the  district  judge  that  the  petitioner  had 
been  allowed  nothing  but  the  semblance  of  a  hearing,  as  we  assume 
to  be  alleged,  the  question  is,  we  repeat,  whether  habeas  corpus  may 
not  be  used  to  give  the  petitioner  the  hearing  that  he  has  been  denied. 

The  statutes  purport  to  exclude  aliens  only.  They  create  or  recog- 
nize, for  present  purposes  it  does  not  matter  which,  the  right  of  citi- 
zens outside  the  jurisdiction  to  return  to  the  United  States.  If  one 
alleging  himself  to  be  a  citizen  is  not  allowed  a  chance  to  establish 
his  right  in  the  mode  provided  by  those  statutes,  although  that  mode 
is  intended  to  be  exclusive,  the  statutes  cannot  be  taken  to  require  him 
to  be  turned  back  without  more.  The  decision  of  the  department 
is  final,  but  that  is  on  the  presupposition  that  the  decision  was  after 
a  hearing  in  good  faith,  however  summary  in  form.  As  between  the 
substantive  right  of  citizens  to  enter  and  of  persons  alleging  them- 
selves to  be  citizens  to  have  a  chance  to  prove  their  allegation,  on  the 
one  side,  and  the  conclusiveness  of  the  commissioner's  fiat,  on  the 
other,  when  one  or  the  other  must  give  way,  the  latter  must  yield. 
In  such  a  case  something  must  be  done,  and  it  naturally  falls  to  be 
done  by  the  courts.    In  order  lo  decide  what,  we  must  analyze  a  little. 

If  we  regard  the  petitioner,  as  in  Ju  Toy's  Case  it  was  said  that  he 
should  be  regarded,  as  if  he  had  been  stopped  and  kept  at  the  limit 
of  our  jurisdiction  (198  U.  S.  263,  25  Sup.  Ct.  GU,  49  L.  Ed.  1044), 
still  it  would  be  difficult  to  say  that  he  was  not  imprisoned,  theoretic- 
ally as  well  as  practically,  when  to  turn  him  back  meant  that  he  must 
get  into  a  vessel  against  his  wish  and  be  carried  to  China.  The  case 
would  not  be  that  of  a  person  simply  prevented  from  going  in  one 
direction  that  he  desired  and  had  a  right  to  take,  all  others  being  left 
open  to  him,  a  case  in  which  the  judges  were  not  unanimous  in  Bird 
V.  Jones,  7  Q.  B.  742.  But  we  need  not  speculate  upon  niceties.  It 
is  true  that  the  petitioner  gains  no  additional  right  of  entrance  by 
being  allowed  to  pass  the  frontier  in  custody  for  the  determination  of 
his  case.  But,  on  the  question  whether  he  is  wrongly  imprisoned, 
we  must  look  at  the  actual  facts.  De  facto  he  is  locked  up  until  car- 
ried out  of  the  country  against  his  will. 

The  petitioner  then  is  imprisoned  for  deportation  without  the  pro- 
cess of  law  to  which  he  is  given  a  right.  Habeas  corpus  is  the  usual 
remedy  for  unlawful  imprisonment.  But,  on  the  Other  hand,  as  yet 
the  petitioner  has  not  established  his  right  to  enter  the  country.    He 


G32  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

is  imprisoned  only  to  prevent  his  entry,  and  an  unconditional  release 
would  make  the  entry  complete  without  the  requisite  proof.  The 
courts  must  deal  with  the  matter  somehow,  and  there  seems  to  be  no 
way  so  convenient  as  a  trial  of  the  merits  before  the  judge.  If  the 
petitioner  proves  his  citizenship,  a  longer  restraint  would  be  illegal. 
If  he  fails,  the  order  of  deportation  would  remain  in  force. 

We  recur  in  closing  to  the  caution  stated  at  the  beginning,  and  add 
that,  while  it  is  not  likely,  it  is  possible,  that  the  officials  misinterpreted 
rule  6  as  restricting  the  right  to  obtain  witnesses  which  the  petitioner 
desired  to  produce,  or  rule  7,  commented  on  in  United  States  v.  Sing 
Tuck,  194  U.  S.  161,  169,  170,  24  Sup.  Ct.  621,  48  L.  Ed.  917,  921, 
as  giving  them  some  control  or  choice  as  to  the  witnesses  to  be  heard. 
But,  unless  and  until  it  is  proved  to  the  satisfaction  of  the  judge  that 
a  hearing  properly  so  called  was  denied,  the  merits  of  the  case  are  not 
open,  and,  we  may  add,  the  denial  of  a  hearing  cannot  be  established 
by  proving  that  the  decision  was  wrong. 

Order  reversed.    Writ  of  habeas  corpus  to  issue. 

Mr.  Justice  BricwEr  concurs  in  the  result. 


SECTION  80.— PUBLIC  LANDS 


UNITED  STATES  v.  MINOR. 

(Supreme  Court  of  the  United  States.  1885.     114  U.   S.  23.3,  5  Sup.  Ct.  836, 
29  L.  Fa\.  110.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  District 
of  California. 

This  is  an  appeal  from  a  decree  of  the  Circuit  Court  for  the  Dis- 
trict of  California,  dismissing  the  bill  of  the  United  States  on  demur- 
rer. The  object  of  the  bill  was  to  set  aside  and  annul  a  patent  issued 
by  the  United  States  to  Minor,  on  January  5,  1876,  for  the  N.  W.  i/4 
of  section  18,  township  6  N.,  range  2  E.  of  the  Humboldt  meridian. 
The  bill  as  originally  filed  made,  in  substance,  the  following  allega- 
tions : 

That  said  Minor,  on  the  twenty-third  day  of  October,  1874,  filed 
the  declaratory  statement  in  the  land  office  necessary  to  give  him  a 
right  of  pre-emption  to  the  land,  alleging  that  he  had  made  a  settle- 
ment on  it  March  20  of  that  year;  and  on  June  20,  1875,  he  made 
the  usual  affidavit  that  he  had  so  settled  on  the  land  in  March  of  the 
previous  year;  that  he  had  improved  it,  built  a  house  on  it,  and  con- 
tinued to  reside  on  it  from  the  time  of  said  settlement,  and  had  cul- 
tivated about  one  acre  of  it.  He  also  made  affidavit,  as  the  law  re- 
quired, that  he.  had  not  so  settled  upon  and  improved  the  land  witli 


Ch.  9)      JURISDICTION,  CON'CLUSIVEXESS,  AND  JUDICIAL  CONTROL.         633 

any  agreement  or  contract  with  any  person  by  which  the  title  he  might 
acquire  would  inure  to  the  benefit  of  the  latter.  He  also  made  oath 
that  he  was  not  the  owner  of  320  acres  of  land  in  any  state  or  terri- 
tory in  the  United  States.  These  affidavits  being  received  by  the  reg- 
ister and  receiver  as  true,  he  paid  the  money  necessary  to  perfect  his 
right,  received  of  them  the  usual  certificate,  called  a  patent  certificate, 
on  which  there  was  issued  to  him  at  the  General  Land  Office  in  due 
time  the  patent  which  is  now  assailed. 

The  bill  then  charges  that  all  these  statements,  made  under  oath  be- 
fore the  land  officers,  were  false  and  fraudulent ;  that  defendant  had 
never  made  the  settlement  nor  cultivation  nor  improvements  men- 
tioned ;  that  he  had  never  resided  on  the  land,  but  during  all  the  time 
had  lived  and  had  his  home  in  a  village  about  13  miles  distant;  and 
that  he  had  not  made  these  proofs  of  settlement  to  appropriate  the 
land  to  his  own  use,  but  with  intent  to  sell  the  same  to  some  person 
unknown  to  the  plaintifif.  It  is  also  charged  that  defendant  produced, 
in  corroboration  of  his  own  statement,  the  affidavit  of  a  witness,  one 
Joseph  Ohuitt,  who  testified  to  the  settlement,  improvement,  and  resi- 
dence of  defendant,  all  of  which  was  false  and  fraudulent.  It  is  then 
alleged  that  by  these  false  affidavits  the  land  officers,  supposing  them 
to  be  true,  were  deceived  and  misled  into  allowing  said  pre-emption 
claim  and  issuing  said  patent,  to  the  great  injury  of  the  United  States. 
*     *     * 

The  circuit  and  district  judges  have  certified  a  division  of  opinion 
on  eight  propositions  of  law,  which  they  believe  to  arise  out  of  this 
demurrer,  as  follows :  (1)  Whether  the  frauds  and  perjury  alleged 
in  the  bill  as  the  equitable  grounds  for  vacating  the  patent  in  question 
are  frauds  extrinsic  and  collateral  to  the  matter  tried  and  determined 
in  the  land  office  upon  which  the  patent  issued,  and  constitute  such 
frauds  as  entitle  the  complainant  to  relief  in  a  court  of  equity.  (2) 
Whether  perjury  and  false  testimony  in  a  proceeding  before  the  land 
office,  such  as  alleged  in  the  said  amended  bill,  by  means  of  which  a 
patent  to  a  portion  of  the  public  land  is  fraudulently  and  wrongfully 
secured,  is  such  a  fraud  as  will  require  a  court  of  equity  to  vacate  the 
patent  on  that  ground  alone.  (3)  Whether  the  decision  and  determi- 
nation of  the  questions  involved  on  false  and  perjured  testimony,  as  set 
forth  in  the  said  amended  bill,  and  the  issue  of  a  patent  thereon,  are 
not  conclusive  as  against  the  United  States  on  a  bill  filed  to  vacate  the 
patent  so  issued.     *     *     * 

Miller,  J.^®  *  *  *  The  first  three  questions  may  be  considered 
together.  If  an  individual  or  a  corporation  had  been  induced  to  part 
with  the  title  to  land,  or  any  other  property,  by  such  a  fraud  as  that 
set  out  in  this  bill,  there  would  seem  to  be  no  difficulty  in  recovering  it 
back  by  appropriate  judicial  proceedings.  If  it  was  a  sale  and  convey- 
ance of  land  induced  by  fraudulent  misrepresentation  of  facts  which 

38  Only  a  portion  of  this  case  is  printed. 


034  lUCLIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

had  no  existence,  on  which  the  grantor  reHed,  and  had  a  right  to  rely, 
and  which  were  essential  elements  of  the  consideration,  there  would 
be  no  hesitation  in  a  court  of  equity  giving  relief;  and  where  the  title 
remained  in  the  possession  of  the  fraudulent  grantee,  the  court  would 
surclv  annul  the  whole  transaction,  and  require  a  reconveyance  of 
the  land  to  the  grantor.  The  case  presented  to  us  by  the  bill  is  one 
of  unmitigated  fraud  and  imposition,  consummated  by  means  of  rep- 
resentations on  which  alone  the  sale  was  made,  every  one  of  which 
was  false.  The  law  and  the  rules  g-overning  these  pre-emption  sales 
required  in  every  instance  the  settlement  and  residence  for  a  given  time 
on  the  land,  the  actual  cultivation  of  a  part  of  it,  and  building  a  house 
on  it.  It  required  that  the  claimant  should  do  this  with  a  purpose  of 
acquiring  real  ownership  for  himself  and  not  for  another,  nor  with  a 
purpose  to  sell  to  another. 

In  the  case  as  presented  by  this  bill  none  of  these  things  were  done, 
though  the  land  officers  were  made  to  believe  they  were  done  by  the 
false  representation  of  the  defendant.  It  was  a  case  where  all  the 
requirements  of  the  law  were  set  at  naught,  evaded,  and  defied  by 
one  stupendous  falsehood,  which  included  all  the  requirements  on 
which  the  right  to  secure  the  land  rested.  There  can  be  no  question 
of  the  fraud,  and  its  misleading  effect  on  the  officers  of  the  govern- 
ment, and,  in  a  transaction  between  individuals,  it  makes  a  clear  case 
for  relief. 

Is  there  anything  in  the  circumstance  that  these  misrepresentations 
were  supported  by  perjury,  that  the  defendant  made  oath  to  his  false- 
hoods, and  procured  a  false  affidavit  of  a  witness  to  corroborate  him- 
self, which  should  deprive  the  injured  party  of  relief?  It  would  seem 
rather  to  add  to  the  force  of  the  reasons  for  such  relief  that  fraud  and 
falsehood  were  re-enforced  by  perjury. 

Is  there  any  reason  to  be  found  in  the  relation  of  the  government 
to  such  a  case  aS  this,  which  will  deprive  it  of  the  same  right  to  relief 
as  an  individual  would  have  ?  On  the  contrary,  there  are  reasons  why 
the  government  in  this  class  of  cases  should  not  be  held  to  the  same 
diligence  in  guarding  against  fraud  as  a  private  owner  of  real  estate. 
The  government  owns  millions  and  millions  of  acres  of  land,  which 
are  by  law  open  to  pre-emption,  homestead,  and  public  and  private 
sale.  The  right  and  the  title  to  these  lands  are  to  be  obtained  from  the 
government  only  in  accordance  with  fixed  rules  of  law.  For  the  more 
convenient  management  of  the  sale  of  these  lands,  and  the  establish- 
ment by  individuals  of  the  inchoate  rights  of  pre-emption  and  home- 
stead, and  their  final  perfection  in  the  issuing  of  a  title  called  a  pat- 
ent, there  is  established  in  each  land  district  an  office  in  which  are  two 
officers,  and  no  more,  called  register  and  receiver.  These  districts 
often  include  20,000  square  miles  or  more,  in  all  parts  of  which  the 
lands  of  the  government  subject  to  sale,  pre-emption,  and  homestead 
are  found.  These  officers  do  not,  they  cannot,  visit  these  lands.  They 
have  maps  showing  the  location  of  the  government  lands,  and  their 


Ch.  9)       JUKISDICTIOX,  CONCLUSIVENESS,  AND   JUDICIAL   CONTROL.  035 

subdivision  into  townships,  sections,  and  parts  of  sections,  and  when 
a  person  desires  to  initiate  a  claim  to  any  of  them,  he  goes  before  them 
and  makes  the  necessary  statements,  affidavits,  and  claims,  of  all  which 
they  make  memoranda  and  copies,  which  are  forwarded  to  the  Gen- 
eral Land  Office  at  Washington. 

For  the  truth  of  these  statements  they  are  compelled  to  rely  on  the 
oaths  of  the  parties  asserting  claims,  and  such  ex  parte  affidavits  as 
they  may  produce.  In  nine  cases  out  of  ten,  perhaps  in  a  much  larger 
percentage,  the  proceedings  are  wholly  ex  parte.  In  the  absence  of 
any  contesting  claimant  for  a  right  to  purchase  or  secure  the  land, 
the  party  applying  has  it  all  his  own  way.  He  makes  his  own  state- 
ment, sworn  to  before  those  officers,  and  he  produces  affidavits.  If 
these  affidavits  meet  the  requirements  of  the  law,  the  claimant  suc- 
ceeds, and  what  is  required  is  so  well  known  that  it  is  reduced  to  a  for- 
mula. It  is  not  possible  for  the  officers  of  the  government,  except  in  a 
few  rare  instances,  to  know  anything  of  the  truth  or  falsehood  of  these 
statements.  In  the  cases  where  there  is  no  contesting  claimant  there 
is  no  adversary  proceeding  whatever.  The  United  States  is  passive ; 
it  opposes  no  resistance  to  the  establishment  of  the  claim,  and  makes 
no  issue  on  the  statement  of  the  claimant. 

When,  therefore,  he  succeeds  by  misrepresentation,  by  fraudulent 
practices,  aided  by  perjury,  there  would  seem  to  be  more  reason  wdiy 
the  United  States,  as  the  owner  of  land  of  wdiich  it  has  been  defrauded 
by  these  means,  should  have  remedy  against  that  fraud — all  the  rem- 
edy which  the  courts  can  give — than  in  the  case  of  a  private  owner  of 
a  few  acres  of  land  on  whom  a  like  fraud  has  been  practiced. 

In  a  suit  brought  by  Moffat  against  the  United  States  to  set  aside 
a  patent  for  land  on  the  ground  of  fraud  in  procuring  its  issue,  this 
court  said:  "It  may  be  admitted,  as  stated  by  counsel,  that  if,  upon 
any  state  of  facts,  the  patent  might  have  been  lawfully  issued,  the  court 
will  presume,  as  against  collateral  attack,  that  the  facts  existed ;  but 
that  presumption  has  no  place  in  a  suit  by  the  United  States  directly 
assailing  the  patent  and  seeking  its  cancellation  for  fraud  in  the  con- 
duct of  those  officers."  112  U.  S.  24,  5  Sup.  Ct.  10,  28  L.  Ed.  623. 
The  principle  is  equally  applicable  when  those  officers,  though  wholly 
innocent,  were  imposed  upon  and  deceived  by  the  fraud  and  false 
swearing  of  the  party  to  whom  the  patent  was  issued. 

The  learned  judge  whose  opinion  prevailed  in  the  Circuit  Court  and 
is  found  in  the  record,  has  been  misled  by  confounding  the  present 
case  with  that  of  U.  S.  v.  Throckmorton,  98  U.  S.  61,  25  L.  Ed.  93,  and 
Vance  v.  Burbank,  101  U.  S.  51-1,  25  L.  Ed.  929,  and  thus  applying 
principles  to  this  which  do  not  belong  to  it.  In  Throckmorton's  Case, 
it  is  true,  a  part  of  the  relief  sought  was  to  set  aside  a  patent  for  land 
issued  by  the  United  States.  But  the  patent  was  issued  on  the  con- 
firmation of  a  Mexican  grant  after  proceedings  prescribed  by  the  act 
of  Congress  on  that  subject.  These  proceedings  were  judicial.  They 
commenced  before  a  board  of  commissioners.     There  were  pleadings 


G3G  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

and  parties,  and  the  claimant  was  plaintiff,  and  the  United  States  was 
the  defendant.  Both  parties  were  represented  hy  counsel — the  United 
States  having-  in  all  such  cases  her  regular  district  attorney  to  represent 
her.  Witnesses  were  examined  in  the  usual  way,  by  depositions,  sub- 
ject to  cross-examinations,  and  not  by  ex  parte  affidavits.  From  this 
tribunal  there  was  a  right  of  appeal  to  the  district  court,  and  from  that 
court  to  the  Supreme  Court  of  the  United  States,  by  either  party. 
There  was  nothing  wanting  to  make  such  a  proceeding,  in  the  highest 
sense,  a  judicial  one,  and  to  give  to  its  final  judgment  or  decree  all  the 
respect,  the  verity,  the  conclusiveness,  which  belong  to  such  a  final  de- 
cree between  the  parties.  The  patent  could  only  issue  on  this  final 
decree  of  confirmation  of  the  Spanish  or  Mexican  grant,  and  was,  in 
effect,  but  the  execution  of  that  decree. 

It  was  to  such  a  case  as  this  that  the  ruling  in  Throckmorton's  Case 
was  applied.  The  court  said  in  that  case,  which  was  a  bill  to  set  aside 
the  decree  of  confirmation :  "The  genuineness  and  validity  of  the  con- 
cession from  Michelterona,  produced  by  complainant,  was  the  single 
question  pending  before  the  board  of  commissioners  and  the  district 
court  for  four  years.  It  was  the  thing,  and  the  only  thing,  that  was 
controverted,  and  it  was  essential  to  the  decree.  To  overrule  the  de- 
murrer to  this  bill  would  be  to  retry,  twenty  years  after  the  decision 
of  those  tribunals,  the  very  matter  which  they  tried,  on  the  ground  of 
fraud  in  the  document  oh  which  the  decree  was  made.  If  we  can  do 
this  now,  some  other  court  may  be  called  on  twenty  years  hence  to 
retry  the  same  matter  on  another  allegation  of  fraudulent  combination 
in  this  suit  to  defeat  the  ends  of  justice;  and  so  the  number  of  suits 
would  be  without  limit  and  litigation  endless  about  the  single  ques- 
tion of  the  validity  of  this  document." 

It  needs  no  other  remarks  than  those  we  have  already  made,  as  to 
the  nature  of  the  proceeding  before  the  land  officers,  to  show  how 
inappropriate  this  language  is  to  such  a  proceeding.  Here  no  one 
question  was  in  issue.  No  issue  at  all  was  taken.  No  adversary  pro- 
ceeding was  had.  No  contest  was  made.  The  officers,  acting  on  such 
evidence  as  the  claimant  presented,  were  bound  by  it  and  by  the  law  to 
issue  a  patent.  They  had  no  means  of  controverting  its  truth,  and 
the  government  had  no  attorney  to  inquire  into  it.  Surely  the  doctrine 
applicable  to  the  conclusive  character  of  the  solemn  judgments  of 
courts,  with  full  jurisdiction  over  the  parties  and  the  subject-matter, 
made  after  appearance,  pleadings,  and  contest  by  parties  on  both  sides, 
cannot  be  properly  applied  to  the  proceedings  in  the  land  office  in  such 
cases. 

So,  also,  as  regards  the  case  of  Vance  v.  Burbank,  101  U.  S.  514, 
25  L.  Ed.  929,  the  language  of  the  court  in  regard  to  the  conclusive- 
ness of  the  decision  of  the  land  office  must  be  considered  with  reference 
to  the  case  before  it.  That  was  not  a  case  by  the  grantor,  the  United 
States,  to  set  aside  the  patent,  but  by  a  party,  or  the  heirs  of  a  party, 
who  had  contested  the  right  of  the  grantee  before  all  the  officers  of 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND   JUDICIAL   CONTROL.  G37 

the  land  department  up  to  the  Secretary  of  the  Interior,  and  been  de- 
feated, and  where  the  whole  question  depended  on  disputed  facts,  the 
evidence  of  which  was  submitted  by  the  contestants  to  those  officers. 
In  such  a  case,  where  there  was  full  hearing,  rehearing,  and  issues 
made  and  tried,  the  observation  of  the  court,  "that  the  decision  of  the 
proper  officers  of  the  department  is  in  the  nature  of  a  judicial  de- 
termination of  the  matter  in  dispute,"  is  well  founded. 

It  has  been  often  said  by  this  court  that  the  land  officers  are  a  special 
tribunal  of  a  quasi  judicial  character,  and. their  decision  on  the  facts 
before  them  is  conclusive.  And  we  are  not  now  controverting  the 
principle  that  where  a  contest  between  individuals,  for  the  right  to  a' 
patent  for  public  lands,  has  been  brought  before  these  officers,  and  both 
parties  have  been  represented  and  had  a  fair  hearing,  that  those  par- 
ties are  concluded  as  to  all  the  facts  thus  in  issue  by  the  decision  of  the 
officers.  But  in  proceedings  like  the  present,  wholly  ex  parte,  no  con- 
test, no  adversary  proceedings,  no  reason  to  suspect  fraud,  but  where 
the  patent  is  the  result  of  nothing  but  fraud  and  perjury,  it  is  enough 
to  hold  that  it  conveys  the  legal  title,  and  it  would  be  going  quite  too 
far  to  say  that  it  cannot  be  assailed  by  a  proceeding  in  equity  and  set 
aside  as  void,  if  the  fraud  is  proved  and  there  are  no  innocent  holders 
for  value.  We  have  steadily  held  that,  though  in  the  absence  of  fraud 
the  facts  were  concluded  by  the  action  of  the  land  department,  a  mis- 
construction of  the  law,  by  which  alone  the  successful  party  obtained 
a  patent,  might  be  corrected  in  ec[uity;  much  more  when  there  was 
fraud  and  imposition. 

If,  by  the  case  as  made  by  the  bill,  Spence's  claim  had  covered  all 
the  land  patented  to  Minor,  it  would  present  the  question  whether  the 
United  States  could  bring  this  suit  for  Spence's  benefit.  The  govern- 
ment, in  that  case,  would  certainly  have  no  interest  in  the  land  when 
recovered,  as  it  must  go  to  Spence  without  any  further  compensa- 
tion. And  it  may  become  a  grave  question,  in  some  future  case  of 
this  character,  how  far  the  officers  of  the  government  can  be  permit- 
ted, when  it  has  no  interest  in  the  property  or  in  the  subject  of  the 
litigation,  to  use  its  name  to  set  aside  its  own  patent,  for  which  it  has 
received  full  compensation,  for  the  benefit  of  a  rival  claimant.  The 
question,  however,  does  not  arise  here,  for  half  the  land  covered  by 
the  patent  would  revert  to  the  United  States  if  it  was  vacated ;  and, 
as  between  the  United  States  and  Minor  it  was  one  transaction  evi- 
denced by  one  muniment  of  title,  the  question  does  not  arise ;  certainly 
not  on  demurrer  to  this  bill. 

The  result  of  these  considerations  is  that  the  first  and  second  ques- 
tions are  answered  in  the  affirmative ;  the  third,  fourth,  sixth,  and  sev- 
enth in  the  negative ;   and  the  fifth  is  immaterial. 

The  decree  of  the  Circuit  Court  is  reversed,  and  the  case  remanded 
for  further  proceeding  not  inconsistent  with  this  opinion."^ 

30  Suit  to  cancel  certificate  of .  uaturalization.  U.  S.  v.  Norsch  (C.  C.)  42 
Fed.  417  (ISaO). 


G38  KELIEF   AGAINST  ADMINISTRATIVE   ACTION.  (Part 


NOBLE  et  al.  v.  UNION  RIVER  LOGGING  R.  CO. 

(Supreme  Court  of  United  States,  3S93.     147  U.   S.  1G5,  13  Sup.  Ct.  271,  37 
L.  Ed.  123.) 

Appeal  from  the  Supreme  Court  of  the  District  of  Cokunbia.  Af- 
firmed. 

This  was  a  bill  in  equity  by  the  Union  River  Logging  Railroad  Com- 
pany to  enjoin  the  Secretary  of  the  Interior  and  the  Commissioner  of 
the  General  Land  Office  from  executing  a  certain  order  revoking  the 
approval  of  the  plaintiff's  maps  for  a  right  of  way  over  the  public 
lands,  and  also  from  molesting  plaintiff  in  the  enjoyment  of  such  right 
of  way  secured  to  it  under  an  act  of  Congress. 

The  bill  averred,  in  substance,  that  the  Union  River  Logging  Rail- 
road Company  was  organized  March  20,  1883,  under  chapter  185  of 
the  Territorial  Code  of  Washington,  authorizing  the  formation  of 
"corporations  for  *  *  *  the  purpose  of  building,  equipping,  and 
running  railroads,"  etc.  The  articles  declared  the  business  and  objects 
of  the  corporation  to  be  "the  building,  equipping,  running,  maintain- 
ing, and  operating  of  a  railroad  for  the  transportation  of  saw  logs, 
piles,  and  other  timber,  and  wood  and  lumber,  and  to  charge  and  re- 
ceive compensation  and  tolls  therefor,  *  *  *  from  tide  water  in 
Lynch's  Cove,  at  the  head  of  Hood's  Canal,  in  said  Mason  county, 
and  running  thence  in  a  general  northeasterly  direction,  by  the  most 
practicable  route,  a  distance  of  about  ten  miles,  more  or  less,"  etc. 
The  capital  stock  of  the  company  being  subscribed,  the  company  pro- 
ceeded by  degrees  to  construct  and  equip  a  road  extending  from  tide 
water  in  Lynch's  Cove,  about  four  miles  along  the  line  above  men- 
tioned, to  transport  saw  logs  and  other  lumber  and  timber.  On  Au- 
gust 17,  1888,  amended  articles  of  incorporation  were  filed,  "to  con- 
struct and  equip  a  railroad  and  telegraph  line"  over  a  much  longer 
route,  with  branches,  and  "to  maintain  and  operate  said  railroad  and 
branches,  and  carry  freight  and  passengers,  thereon,  and  receive  tolls 
therefor."  Also  "to  engage  and  carry  on  a  general  logging  business, 
and  provide  for  the  cutting,  hauling,  transportation,  buying,  ovt^ning, 
acquiring,  and  selling  of  all  kinds  of  logs,  piles,  poles,  lumber,  and  tim- 
ber." 

In  the  spring  of  1889,  plaintiff  proceeded  to  extend  its  line  of  road 
for  three  miles  beyond  the  point  to  which  it  had  previously  extended 
it.  It  located  at  intervals  a  better  line  of  road ;  made  and  ballasted  a 
new  roadbed  of  standard  gauge ;  and  substituted  steel  rails  and  an- 
other locomotive  in  place  of  those  rails  and  equipments  which  had  been 
sufficient  for  its  limited  purposes,  as  specified  in  the  original  articles. 
In  January,  1889,  the  company  desiring  to  avail  itself  of  Act  Cong. 
March  3,  1875,  c.  152,  18  Stat.  482  (U.  S.  Comp.  St.  1901,  p.  15GS), 
granting  to  railroads  a  right  of  way  through  the  public  lands  of  the 
United  States,  filed  with  the  register  of  the  land  office  at  Seattle  a 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND   JUDICIAL   CONTROL.  G30 

copy  of  its  articles  of  incorporation,  a  copy  of  the  territorial  law  under 
which  the  company  was  organized,  and  the  other  documents  required 
by  the  act,  together  with  a  map  showing  the  termini  of  the  road,  its 
length,  and  its  route  through  the  public  lands  according  to  the  public 
surveys.  These  papers  were  transmitted  to  the  Commissioner  of  the 
Land  Office,  and  by  him  to  the  Secretary  of  the  Interior,  by  whom  the \- 
were  approved  in  writing,  and  ordered  to  be  filed.  They  were  accord- 
ingly filed  at  once,  and  the  plaintiff  notified  thereof. 

On  June  13,  1S90,  a  copy  of  an  order  by  the  appellant,  successor  in 
office  to  the  Secretary  of  the  Interior  by  whom  the  maps  were  ap- 
proved, was  served  upon  the  plaintiff,  requiring  it  to  show  cause  why 
said  approval  should  not  be  revoked  and  annulled. 

This  was  followed  by  an  order  of  the  acting  Secretary  of  the  In- 
terior, annulling  and  canceling  such  maps,  and  directing  the  Com- 
missioner of  the  Land  Office  to  carry  out  the  order. 

The  answer  admitted  all  the  allegations  of  fact  in  the  bill,  and  aver- 
red that  it  became  known  to  the  defendants  that  the  plaintiff'  was  not 
engaged  in  the  business  of  a  common  carrier  of  passengers  and  freight 
at  the  time  of  its  application,  but  in  the  transportation  of  logs  for  the 
private  use  and  benefit  of  the  several  persons  composing  the  said  com- 
pany, and  that,  being  advised  that  a  railroad  company  carrying  on  a 
merely  private  business  was  not  such  a  railroad  company  as  was  con- 
templated by  the  act  of  Congress,  deemed  it  their  duty  to  vacate  and 
annul  the  action  of  ]\Ir.  Vilas,  then  Secretary  of  the  Interior,  approv- 
ing plaintiff's  maps  of  definite  location,  and  to  that  end  caused  the  no- 
tice complained  of  in  the  bill  to  be  served.  They  further  claimed  it  to 
be  their  duty  to  revoke  and  annul  the  action  of  the  former  Secretary 
of  the  Interior  as  having  been  made  improvidently,  and  on  false  sug- 
gestions, and  without  authority  under  the  statute. 

L'pon  a  hearing  upon  the  bill,  answer,  and  accompanying  exhibits, 
the  court  ordered  a  decree  for  the  plaintiff,  and  an  injunction  as 
prayed  for  in  the  bill.    Defendants  appealed  to  this  court. 

Mr,  Justice  Brown,  after  stating  the  facts  in  the  foregoing  lan- 
guage, delivered  the  opinion  of  the  court. 

This  case  involves  not  only  the  power  of  this  court  to  enjoin  the 
head  of  a  department,  but  the  power  of  a  Secretary  of  the  Interior 
to  annul  the  action  of  his  predecessor,  when  such  action  operates  to 
give  eff'ect  to  a  grant  of  public  lands  to  a  railroad  corporation. 

1.  With  regard  to  the  judicial  power  in  cases  of  this  kind,  it  was 
held  by  this  court  as  early  as  1803,  in  the  great  case  of  Marbury  v. 
]\Iadison,  1  Cranch,  137,  that  there  was  a  distinction  between  acts  in- 
volving the  exercise  of  judgment  or  discretion  and  those  which  are 
purely  ministerial ;  that,  with  respect  to  the  former,  there  exists,  and 
can  exist,  no  power  to  control  the  executive  discretion,  however  erro- 
neous its  exercise  may  seem  to  have  been ;  but  with  respect  to  min- 
isterial duties,  an  act  or  refusal  to  act  is,  or  may  become,  the  subject 
of  review  by  the  courts.     The  principle  of  this  case  was  applied  in 


G40  RELIEF  AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

Kendall  v.  U.  S.,  12  Pet.  521,  9  L.  Ed.  1181,  and  the  action  of  the  Cir- 
cuit Court  sustained  in  a  proceeding  where  it  had  commanded  the 
Postmaster  General  to  credit  the  relator  with  a  certain  sum  awarded 
to  him  by  the  Solicitor  of  the  Treasury  under  an  act  of  Congress  au- 
thorizing the  latter  to  adjust  the  claim,  this  being  regarded  as  purely 
a  ministerial  duty.  In  Decatur  v.  Paulding,  14  Pet.  497,  10  L.  Ed. 
')od,  a  mandamus  was  refused  upon  the  same  principle,  to  compel  the 
Secretary  of  the  Navy  to  allow  to  the  widow  of  Commodore  Decatur 
a  certain  pension  and  arrearages.  Indeed,  the  reports  of  this  court 
abound  with  authorities  to  the  same  effect.  Kendall  v.  Stokes,  3  How. 
sr,  11  L.  Ed.  506;  Brashear  v.  Mason,  G  How.  92,  12  L.  Ed.  357; 
Reeside  v.  Walker,  11  How.  272,  13  L.  Ed.  693;  Commissioner  v. 
W'hitelev,  4  Wall.  522,  18  L.  Ed.  335 ;  U.  S.  v.  Seaman,  17  How.  231, 
15  L.  Ed.  226;  U.  S.  v.  Guthrie,  17  How.  284,  15  L.  Ed.  102;  U.  S. 
V.  Commissioner,  5  Wall.  563,  18  L.  Ed.  892  ;  Gaines  v.  Thompson,  7 
Wall.  347,  19  L.  Ed.  62;  Secretary  v.  McGarrahan,  9  Wall.  298,  19 
L.  Ed.  579;  U.  S.  v.  Schurz,  102  U.  S.  378,  26  L.  Ed.  167;  Butter- 
worth  V.  Hoe,  112  U.  S.  50,  5  Sup.  Ct.  25,  28  L.  Ed.  656 ;  U.  S.  v. 
Black,  128  U.  S.  40,  9  Sup.  Ct.  12,  32  L.  Ed.  354.  In  all  these  cases 
the  distinction  between  judicial  and  ministerial  acts  is  commented  up- 
on and  enforced. 

We  have  no  doubt  the  principle  of  these  decisions  applies  to  a  case 
wherein  it  is  contended  that  the  act  of  the  head  of  a  department,  un- 
der any  view  that  could  be  taken  of  the  facts  that  were  laid  before 
him,  was  ultra  vires,  and  beyond  the  scope  of  his  authority.  If  he 
has  no  power  at  all  to  do  the  act  complained  of,  he  is  as  much  subject 
to  an  injunction  as  he  would  be  to  a  mandamus  if  he  refused  to  do  an 
act  which  the  law  plainly  required  him  to  do.  As  observed  by  Mr. 
Justice  Bradley  in  Board  v.  McComb,  92  U.  S.  531,  541,  23  L.  Ed. 
623 :  "But  it  has  been  well  settled  that  when  a  plain,  official  duty,  re- 
quiring no  exercise  of  discretion,  is  to  be  performed,  and  performance 
is  refused,  any  person  who  will  sustain  personal  injury  by  such  refusal 
may  have  a  mandamus  to  compel  its  performance ;  and  when  such 
duty  is  threatened  to  be  violated  by  some  positive  official  act,  any  per- 
son who  will  sustain  personal  injury  thereby,  for  which  adequate  com- 
pensation cannot  be  had  at  law,  may  have  an  injunction  to  prevent  it. 
In  such  cases  the  writs  of  mandamus  and  injunction  are  somewhat 
correlative  to  each  other." 

2.  At  the  time  the  documents  required  by  the  act  of  1875  were  laid 
before  Mr.  Vilas,  then  Secretary  of  the  Interior,  it  became  his  duty 
to  examine  them,  and  to  determine,  among  other  things,  whether  the 
railroad  authorized  by  the  articles  of  incorporation  was  such  a  one  as 
was  contemplated  by  the  act  of  Congress.  Upon  being  satisfied  of  this 
fact,  and  that  all  the  other  requirements  of  the  act  had  been  observed, 
he  was  authorized  to  approve  the  profile  of  the  road,  and  to  cause  such 
approval  to  be  noted  upon  the  plats  in  the  land  office  for  the  district 
where  such  land  was  located.    When  this  was  done,  the  granting  sec- 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL  CONTROL.  641 

tion  of  the  act  became  operative,  and  vested  in  the  railroad  company 
a  right  of  way  through  the  pubUc  lands  to  the  extent  of  100  feet  on 
each  side  of  the  central  line  of  the  road.  Frasher  v.  O'Connor,  115 
U.  S.  103,  5  Sup.  Ct.  1141,  29  L.  Ed.  311. 

The  position  of  the  defendants  in  this  connection  is  that  the  existence 
of  a  railroad,  with  the  duties  and  liabilities  of  a  common  carrier  of 
freight  and  passengers,  was  a  jurisdictional  fact,  without  which  the 
Secretary  had  no  power  to  act,  and  that  in  this  case  he  was  imposed 
upon  by  the  fraudulent  representations  of  the  plaintiff,  and  that  it  was 
competent  for  his  successor  to  revoke  the  approval  thus  obtained ;  in 
other  words,  that  the  proceedings  were  a  nullity,  and  that  his  want 
of  jurisdiction  to  approve  the  map  may  be  set  up  as  a  defense  to  this 
suit. 

It  is  true  that,  in  every  proceeding  of  a  judicial  nature,  there  are 
one  or  more  facts  which  are  strictly  jurisdictional,  the  existence  of 
which  is  necessary  to  the  validity  of  the  proceedings,  and  without 
which  the  act  of  the  court  is  a  mere  nullity ;  such,  for  example,  as  the 
service  of  process  within  the  state  upon  the  defendant  in  a  common- 
law  action  (D'Arcy  v.  Ketchum,  11  How.  165,  13  L.  Ed.  618;  Web- 
ster v.  Reid,  11  How.  437,  13  L.  Ed.  761 ;  Harris  v.  Hardeman,  14 
How.  334,  14  L.  Ed.  444 ;  Pennoyer  v.  Neff,  95  U.  S.  714,  24  L.  Ed. 
565;  Borden  v.  Fitch,  15  Johns.  [N.  Y.]  141,  8  Am.  Dec.  325);  the 
seizure  and  possession  of  the  res  within  the  bailiwick  in  a  proceeding 
in  rem  (Rose  v.  Himely,  4  Cranch,  341,  3  E.  Ed.  608 ;  Thompson  v. 
Whitman,  18  Wall.  457,  21  L.  Ed.  897);  a  publication  in  strict  ac- 
cordance with  the  statute,  where  the  property  of  an  absent  defendant 
is  sought  to  be  charged  (Galpin  v.  Page,  18  Wall.  350,  31  L.  Ed.  959 ; 
Guaranty  Trust  &  Safe  Deposit  Co.  v.  Green  Cove  Springs  &  M.  R. 
Co.,  139'U.  S.  137,  11  Sup.  Ct.  513,  35  L.  Ed.  116).  So,  if  the  court 
appoint  an  administrator  of  the  estate  of  a  living  person,  or,  in  a  case 
where  there  is  an  executor  capable  of  acting  (Griffith  v.  Frazier,  8 
Cranch,  9,  3  L.  Ed.  471),  or  condemns  as  lawful  prize  a  vessel  that  was 
never  captured  (Rose  v.  Himely,  4  Cranch,  341,  369,  3  L.  Ed.  60S),  or 
a  court-martial  proceeds  and  sentences  a  person  not  in  the  military  or 
naval  service  (Wise  v.  Withers,  3  Cranch,  331,  3  L.  Ed.  457),  or  the 
land  department  issues  a  patent  for  land  which  has  already  been  re- 
served or  granted  to  another  person  the  act  is  not  voidable  merely, 
but  void.  In  these  and  similar  cases  the  action  of  the  court  or  officer 
fails  for  want  of  jurisdiction  over  the  person  or  subject-matter.  The 
proceeding  is  a  nullity,  and  its  invalidity  may  be  shown  in  a  collateral 
proceeding. 

There  is,  however,  another  class  of  facts  which  are  termed  "quasi 
jurisdictional,"  which  are  necessary  to  be  alleged  and  proved  in  order 
to  set  the  machinery  of  the  law  in  motion,  but  which,  when  properly  al- 
leged, and  established  to  the  satisfaction  of  the  court,  cannot  be  at- 
tacked collaterally.  With  respect  to  these  facts,  the  finding  of  the 
Fk  .  ADii .  Law — 41 


I 

642  RELIEF   AGAIXST   ADMINISTRATIVE   ACTION.  (Part    2  \ 

court  is  as  conclusively  presumed  to  be  correct  as  its  finding  with  re- 
spect to  any  other  matter  in  issue  between  the  parties.  Examples  of 
these  are  the  allegations  and  proof  of  the  requisite  diversity  of  citizen- 
ship, or  the  amount  in  controversy  in  a  federal  court,  which,  when 
found  bv  such  court,  cannot  be  questioned  collaterally  (Des  Moines 
Nav.  &  R.  Co.  V.  Iowa  Homestead  Co.,  123  U.  S.  552,  8  Sup.  Ct.  217, 
;U  L.  Ed.  202;  In  re  Sawyer,  124  U.  S.  200,  220,  8  Sup.  Ct.  482,  31 
L.  Ed.  402)  ;  the  existence  and  amount  of  the  debt  of  a  petitioning 
debtor  in  an  involuntary  bankruptcy  (Michaels  v.  Post,  21  Wall.  398, 
22  L.  Ed.  520;  Betts  v.  Bagley,  12  Pick.  [Mass.]  572);  the  fact  that 
there  is  insufficient  personal  property  to  pay  the  debts  of  a  decedent, 
when  application  is  made  to  sell  his  real  estate  (Comstock  v.  Craw- 
ford, 3  Wall.  396,  7  L.  Ed.  189) ;  Grignon's  Lessee  v.  Astor,  2  How. 
319, 11  L.  Ed.  283 ;  Florentine  v.  Barton,  2  Wall.  210,  17  L.  Ed.  783)  ; 
the  fact  that  one  of  the  heirs  of  an  estate  had  reached  his  majority, 
when  the  act  provided  that  the  estate  should  not  be  sold  if  all  the 
heirs  were  minors  (Thompson  v.  Tolmie,  2  Pet.  157)  ;  and  others  of 
a  kindred  nature,  where  the  want  of  jurisdiction  does  not  go  to  the 
subject-matter  or  the  parties,  but  to  a  preliminary  fact  necessary  to 
be  proven  to  authorize  the  court  to  act.  Other  cases  of  this  descrip- 
tion are:  Hudson  v.  Guestier,  6  Cranch,  281,  3  L.  Ed.  224;  Ex  parte 
Watkins,  3  Pet.  193,  7  L.  Ed.  650 ;  U.  S.  v.  De  la  Maza  Arredondo, 
6  Pet.  691,  709,  8  L.  Ed.  547 ;  Dyckman  v.  City  of  New  York,  5  N. 
Y.  434;  Jackson  v.  Crawfords,  12  Wend.  (N.  Y.)  533;  Jackson  v. 
Robinson,  4  Wend.  (N.  Y.)  436 ;  Fisher  v.  Bassett,  9  Leigh  (Va.)  119, 
131,  33  Am.  Dec.  227;  Wright  v.  Douglass,  10  Barb.  (N.  Y.)  97,  111. 
In  this  class  of  cases,  if  the  allegation  be  properly  made,  and  the  ju- 
risdiction be  found  by  the  court,  such  finding  is  conclusive  and  bind- 
ing in  every  collateral  proceeding;  and,  even  if  the  court  be  imposed 
upon  by  false  testimony,  its  finding  can  only  be  impeached  in  a  pro- 
ceeding instituted  directly  for  that  purpose.  Simms  v.  Slacum,  3 
Cranch,  300,  2  L.  Ed.  446. 

This  distinction  has  been  taken  in  a  large  number  of  cases  in  this 
court,  in  which  the  validity  of  land  patents  has  been  attacked  collater- 
ally, and  it  has  always  been  held  that  the  existence  of  lands  subject  to 
be  patented  was  the  only  necessary  prerequisite  to  a  valid  patent.  In 
the  one  class  of  cases  it  is  held  that,  if  the  land  attempted  to  be  pat- 
ented had  been  reserved,  or  was  at  the  time  no  part  of  the  public  do- 
main, the  land  department  had  no  jurisdiction  over  it,  and  no  pow- 
er or  authority  to  dispose  of  it.  In  such  cases  its  action  in  certifying 
the  lands  under  a  railroad  grant,  or  in  issuing  a  patent,  is  not  mere- 
ly irregular,  but  absolutely  void,  and  may  be  shown  to  be  so  in  any 
collateral  proceeding.  Polk's  Lessee  v.  Wendal,  9  Cranch,  87,  3  L. 
Ed.  665;  Patterson  v.  Winn,  11  Wheat.  380,  6  L.  Ed.  500;  Jackson 
V.  Lawton,  10  Johns.  (N.  Y.)  23,  6  Am.  Dec.  311 ;  Minter  v.  Crom- 
melin,  18  How.  87,  15  L.  Ed.  279  ;  Reichart  v.  Felps,  6  Wall.  160,  18 
L.  Ed.  849 ;  Railway  Co.  v.  Dunmeyer,  113  U.  S.  629,  5  Sup.  Ct.  566, 


Ch.  9)       JURISDICTION,  COXCLUSIVEXESS,  AND  JUDICIAL   CONTROL.  043 

28  L.  Ed.  112.2;  U.  S.  v.  Southern  Pac.  Ry.  Co.,  14G  U.  S.  oTO,  13 
Sup.  Ct.  152,  36  h.  Ed.  1091. 

Upon  the  other  hand,  if  the  patent  be  for  lands  which  the  land  de- 
partment had  authority  to  convey,  but  it  was  imposed  upon,  or  was 
induced  by  false  representations  to  issue  a  patent,  the  finding  of  the  de- 
partment upon  such  facts  cannot  be  collaterally  impeached,  and  the 
patent  can  only  be  avoided  by  proceedings  taken  for  that  purpose.  As 
was  said  in  Smelting,  etc.,  Co.  v.  Kemp,  104  U.  S.  G3G,  G40,  26  L.  Ed. 
875:  "In  that  respect  they  [the  officers  of  the  land  department]  exer- 
cise a  judicial  function,  and  therefore  it  has  been  held  in  various  in- 
stances by  this  court  that  their  judgment  as  to  matters  of  fact,  proper- 
ly determinable  by  them,  is  conclusive  when  brought  to  notice  in  a  col- 
lateral proceeding.  Their  judgment  in  such  cases  is,  like  that  of  other 
special  tribunals  upon  matters  within  their  exclusive  jurisdiction,  un- 
assailable, except  by  a  direct  proceeding  for  its  correction  or  annul- 
ment." In  French  v.  Fyan,  93  U.  S.  169,  23  L.  Ed.  812,  it  was  held 
that  the  action  of  the  Secretary  of  the  Interior  identifying  swamp 
lands,  making  lists  thereof,  and  issuing  patents  therefor,  could  not  be 
impeached  in  an  action  at  law  by  showing  that  the  lands  which  the 
patent  conveyed  were  not  in  fact  swamp  and  overflowed  lands,  al- 
though his  jurisdiction  extended  only  to  lands  of  that  class.  Other 
illustrations  of  this  principle  are  found  in  Johnson  •  v.  Towsley,  13 
Wall.  ?2,  20  L.  Ed.  485 ;  ]\Ioore  v.  Robbins,  96  U.  S.  530,  24  L.  Ed. 
848 ;  Steel  v.  Smelting,  etc.,  Co.,  106  U.  S.  447,  1  Sup.  Ct.  389,  27  L. 
Ed.  226 ;  Quinbv  v.  Conlan,  104  U.  S.  420,  26  L.  Ed.  800 ;  Vance 
v.  BurbankT  101  U.  S.  514,  25  L.  Ed.  929  ;  Hoofnagle  v.  Anderson, 
7  Wheat.  212,  5  L.  Ed.  437;  Ehrhardt  v.  Hogaboom,  115  U.  S.  67,  5 
Sup.  Ct.  1157,  29  L.  Ed.  346. 

In  Moore  v.  Robbins,  96  U.  S.  530,  24  L.  Ed.  848,  it  was  said  di- 
rectly that  it  is  a  part  of  the  daily  business  of  officers  of  the  land  de- 
partment to  decide  when  a  party  has  by  purchase,  by  pre-emption,  or 
by  any  other  recognized  mode,  established  a  right  to  receive  from  the 
government  a  title  to  any  part  of  the  public  domain.  This  decision  is 
subject  to  an  appeal  to  the  Secretary  of  the  Interior,  if  taken  in  time ; 
"but,  if  no  such  appeal  be  taken,  and  the  patent,  issued  under  the  seal 
of  the  United  States  and  signed  by  the  President,  is  delivered  to  and 
accepted  by  the  party,  the  title  of  the  government  passes  with  this 
delivery.  With  the  title  passes  away  all  the  authority  or  control  of 
the  executive  department  over  the  land,  and  over  the  title  which  it 
has  conveyed.  *  *  *  The  functions  of  that  department  neces- 
sarily cease  when  the  title  has  passed  from  the  government." 

We  think  the  case  under  consideration  falls  within  this  latter  class. 
The  lands  over  which  the  right  of  way  was  granted  were  public 
lands,  subject  to  the  operation  of  the  statute ;  and  the  question  whether 
the  plaintiff  was  entitled  to  the  benefit  of  the  grant  was  one  which  it 
was  competent  for  the  Secretary  of  the  Interior  to  decide,  and,  when 
decided,  and  his  approval  was  noted  upon  the  plats,  the  first  section 


644  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

of  the  act  vested  the  right  of  way  in  the  raih-oad  company.  The  lan- 
guage of  that  section  is  "that  the  right  of  way  through  the  public 
lands  of  the  United  States  is  hereby  granted  to  any  railroad  com- 
pany duly  organized  under  the  laws  of  any  state  or  territory,"  etc. 
The  uniform  rule  of  this  court  has  been  that  such  an  act  was  a  grant 
ill  prsesenti  of  lands  to  be  thereafter  identified.  Railway  Co.  v.  Ailing, 
99  U.  S.  463,  25  L.  Ed.  438.  The  railroad  company  became  at  once 
vested  with  a  right  of  property  in  these  lands,  of  which  they  can 
only  be  deprived  by   a  proceeding  taken  directly   for  that   purpose. 

If  it  were  made  to  appear  that  the  right  of  way  had  been  obtained 
by  fraud,  a  bill  would  doubtless  lie  by  the  United  States  for  the  can- 
cellation and  annulment  of  an  approval  thus  obtained.  Mofifat  v.  U. 
S.,  112  U.  S.  24,  5  Sup.  Ct.  10,  28  L.  Ed.  G23 ;  U.  S.  v.  Minor,  114 
U.  S.  233,  5  Sup.  Ct.  836,  29  L.  Ed.  110.  A  revocation  of  the  ap- 
proval of  the  Secretary  of  the  Interior,  however,  by  his  successor  in 
office,  was  an  attempt  to  deprive  the  plaintifif  of  its  property  without 
due  process  of  law,  and  was,  therefore,  void.  As  was  said  by  Mr. 
Justice  Grier  in  U.  S.  v.  Stone,  2  Wall.  525,  535,  17  L.  Ed.  765: 
''One  officer  of  the  land  office  is  not  competent  to  cancel  or  annul  the 
act  of  his  predecessor.  That  is  a  judicial  act,  and  requires  the  judg- 
ment of  a  court."     Moore  v.  Robbins,  96  U.  S.  530,  24  L.  Ed.  848. 

The  case  of  U.  S.  v.  Schurz,  102  U.  S.  378,  26  L.  Ed.  167,  is 
full  authority  for  the  position  assumed  by  the  plaintiff  in  the  case  at 
bar.  In  this  case  the  relator  had  been  adjudged  to  be  entitled  to 
160  acres  of  the  public  lands ;  the  patent  had  been  regularly  signed, 
sealed,  countersigned,  and  recorded ;  and  it  was  held  that  a  mandamus 
to  the  Secretary  of  the  Interior  to  deliver  the  patent  to  the  relator 
should  be  granted.  It  was  said  in  this  case  by  Mr.  Justice  Miller: 
"Whenever  this  takes  place  [that  is,  when  a  patent  is  duly  executed], 
the  land  has  ceased  to  be  the  land  of  the  government,  or,  to  speak 
in  technical  language,  title  has  passed  from  the  government,  and  the 
power  of  these  officers  to  deal  with  it  has  also  passed  away."  *° 

It  was  not  competent  for  the  Secretary  of  the  Interior  thus  to 
revoke  the  action  of  his  predecessor,  and  the  decree  of  the  court  be- 
low must  therefore  be  affirmed. 

40  In  the  same  case  (United  States  v.  Schurz,  102  U.  S.  378,  401,  402, 
26  L.  Ed.  167  [18.S0]),  the  court  says:  "The  whole  question  is  one  of  disputed 
law  and  disputed  facts.  It  was  a  question  for  the  land  officers  to  consider 
and  decide  before  they  determined  to  issue  INIcBride's  patent.  It  was  with- 
in their  jurisdiction  to  do  so.  If  they  decided  erroneously,  the  patent  may 
be  voidable,  but  not  absolutely  void.  The  mode  of  avoiding  it,  if  voidable.  Is 
not  by  arbitrarily  withholding  it,  but  by  judicial  proceedings  to  set  it  aside, 
or  correct  it  if  only  partly  wrong." 

In  Johnson  v.  Towsley,  13  Wall.  72,  20  L,.  Ed.  485  (1871),  equitable  re- 
lief was  given  where  ah  error  of  law  had  been  committed  in  issuing  a  land 
patent.  As  to  mode  of  relief  in  such  cases,  see  Silver  v.  Ladd,  7  Wall.  219, 
228,  19  L.  Ed.  138  (1SG8). 


Ch.  9)      JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL  CONTROL.         645 


BELEY  V.  NAPHTALY. 

(Supreme  Court  of  Uuited  States,  1S98.     1G9  U.  S.  '^7>3,  18  Sup.  Ct.  354, 
42  L.  Ed.  775.) 

Peckham,  J.*^  *  *  =■'  4.  We  are  also  of  opinion  that  the  re- 
jection by  the  Secretary  of  the  Interior  of  the  first  apphcation  made 
by  the  defendant  in  error  for  a  patent,  and  the  subsequent  grant- 
ing of  a  rehearing  and  the  issuing  of  a  patent  thereafter  by  the 
Secretary,  were  all  acts  within  the  jurisdiction  of  that  officer.  The 
fact  that  a  decision  refusing  the  patent  was  made  by  one  Secretary 
of  the  Interior,  and,  upon  a  rehearing,  a  decision  granting  the  pat- 
ent was  made  by  another  Secretary  of  the  Interior,  is  not  material 
in  a  case  like  this.  It  is  not  a  personal,  but  an  official,  hearing  and 
decision,  and  it  is  made  by  the  Secretary  of  the  Interior  as  such 
Secretary,  and  not  by  an  individual  who  happens  at  the  time  to  fill 
that  office,  and  the  application  for  a  rehearing  may  be  made  to  the 
successor  in  office  of  the  person  who  made  the  original  decision,  pro- 
vided it  could  have  been  made  to  the  latter  had  he  remained  in  office. 
The  Secretary  who  made  the  first  decision  herein  could  have  granted 
a  rehearing  and  reversed  his  former  ruling. 

The  case  of  U.  S.  v.  Stone,  2  Wall.  525.  17  L.  Ed.  765,  has  no 
bearing  adverse  to  this  proposition.  In  that  case  it  was  stated  that 
a  patent  is  but  evidence  of  a  grant,  and  the  officer  who  issues  it  acts 
ministerially,  and  not  judicially;  that,  if  he  issues  a  patent  for  land 
reserved  from  sale  by  law,  such  patent  is  void  for  want  of  authori- 
ty, but  that  one  officer  of  the  land  office  is  not  competent  to  cancel 
or  annul  the  act  of  his  predecessor;  that  is  a  judicial  act,  and  re- 
quires the  judgment  of  a  court.  The  power  to  cancel  or  annul  in 
that  case  meant  the  power  to  annul  a  patent  issued  by  a  predecessor, 
and  this  court  held  no  such  power  existed.  The  officer  originally 
issuing  it  would  have  had  no  greater  power  to  annul  the  patent  than 
had  his  successor. 

Neither  does  Noble  v.  Railroad  Co.,  147  U.  S.  lOo,  13  Sup.  Ct. 
271,  37  L.  Ed.  123,  touch  the  case.  The  principle  therein  decided 
was  in  substance  the  same  as  in  the  Stone  Case,  supra.  The  con- 
trol of  the  department  necessarily  ceased  the  moment  the  title  passed 
from  the  government.  It  was  not  a  question  whether  a  successor 
was  able  to  do  the  act  which  the  original  officer  might  have  done, 
but  it  was  the  announcement  of  the  principle  that  no  officer,  after 
the  title  had  actually  passed,  had  any  power  over  the  matter  what- 
ever. After  the  Secretary  of  the  Interior  had  approved  the  map 
as  provided  for  in  the  act  of  Congress  under  which  the  proceedings 
were  taken  by  the  company,  the  first  section  of  that  act  vested  the  right 
of  way  in  the  company.  This  was  equivalent  to  a  patent,  and  no 
revocation    could   thereafter  be    permitted.      See,    also,    Lumber    Co. 

41  Only  a  portion  of  the  opinion  of  Peckham,  J.,  is  here  printed. 


64G  RKLIKF   AOAINST   ADMINISTRATIVE   ACTION.  (Part    2 

V.  Rust,  108  U.  S.  589,  at  page  502,  18  Sup.  Ct.  208,  43  L.  Ed.  591. 

We  have  considered  the  other  questions  raised  herein,  but  do  not 
think  any  error  was  committed  in  their  disposition  by  the  courts  be- 
low.   The  judgment  of  the  Circuit  Court  of  Appeals  must  be  affirmed. 

jMr.  Justice  HarIvAn  dissented. 


UNITED  STATES  ex  rel.  RIVERSIDE  OIL  CO.  v.  HITCH- 
COCK. 

(Supreme  Court  of  United  States.  190S.     190  U.  S.  31(>,  23  Sup.  Ct.  G08, 
47  L.  Ed.  1074.) 

In  error  to  the  Court  of  Appeals  of  the  District  of  Columbia  to 
review  a  judgment  which  affirmed  a  judgment  of  the  Supreme  Court 
of  that  District  denying  a  petition  for  a  writ  of  mandamus  to  com- 
pel the  Secretary  of  the  Interior  to  vacate  an  order  rejecting  a  se- 
lection of  public  land.     Affirmed. 

[The  statement  of  facts  is  here  omitted.] 

Mr.  Justice  Pkckham  delivered  the  opinion  of  the  court. 

We  have  set  out  in  the  statement  of  facts,  at  very  great  length,  a 
large  portion  of  the  contents  of  the  petition  and  answer  in  this  case. 
It  has  been  done  for  the  purpose  of  showing  by  the  record  itself  the 
questions  of  law  arising  therefrom.  Upon  a  perusal  of  the  record 
it  appears  that  those  questions  are  not  merely  formal  ones,  nor  are 
they  so  plain  as  not  to  require  the  careful  judgment  of  any  tribunal 
to  which  they  may  be  referred  for  decision.  Their  solution  was 
properly  submitted  to  the  Land  Department,  which  had  full  and  com- 
plete jurisdiction  over  the  matters  arising  under  Act  June  4,  1897, 
c.  2,  30  Stat.  34  (U.  S.  Comp.  St.  1901,  p.  1538),  and  it  thereby  be- 
came the  duty  of  the  officers  of  that  department  to  decide  them. 
As  is  said  in  Knight  v.  United  Land  Ass'n,  143  U.  S.  161,  13  Sup. 
Ct.  Rep.  358,  35  L.  Ed.  974:  "The  Secretary  is  the  guardian  of  the 
people  of  the  United  States  over  the  public  lands.  The  obligations 
of  his  oath  of  office  oblige  him  to  see  that  the  law  is  carried  out, 
and  that  none  of  the  public  domain  is  wasted  or  is  disposed  of  to  a 
party  not  entitled  to  it.  He  represents  the  government,  which  is  a 
party  in  interest  in  every  case  involving  the  surveying  and  disposal 
of  the  public  lands." 

Congress  has  constituted  the  Land  Department,  under  the  super- 
vision and  control  of  the  Secretary  of  the  Interior,  a  special  tribunal 
with  judicial  functions,  to  which  is  confided  the  execution  of  the 
laws  which  regulate  the  purchase,  selling,  and  care  and  disposition 
of  the  public  lands.  Neither  an  injunction  nor  mandamus  will  lie 
against  an  officer  of  the  Land  Department  to  control  him  in  discharg- 
ing an  official  duty  which  requires  the  exercise  of  his  judgment  and 
discretion.    Marquez  v.  Frisbie,  101  U.  S.  473,  25  L.  Ed.  800;   Gaines 


Ch.  9)       JURISDICTION,  COXCLUSIVENESS,  AND   JUDICIAL   CONTROL.  647 

V.  Thompson,  7  Wall.  347,  19  L.  Ed.  C2 ;  United  States  ex  rel. 
Dunlap  V.  Black,  128  U.  S.  40,  33  L.  Ed.  354,  9  Sup.  Ct.  Rep.  12 ; 
United  States  ex  rel.  Redfield  v.  Windom,  137  U.  S.  636,  11  Sup. 
Ct.  197,  34  L.  Ed.  811. 

In  Decatur  v.  Paulding,  14  Pet.  497,  10  L.  Ed.  559,  GOO,  it  was 
held  that,  in  general,  the  official  duties  of  the  head  of  one  of  the 
executive  departments,  whether  imposed  by  act  of  Congress  or  by 
resolution,  are  not  mere  ministerial  duties.  The  head  of  an  execu- 
tive department  of  the  government  in  the  administration  of  the  va- 
rious and  important  concerns  of  his  office  is  continually  required  to 
exercise  judgment  and  discretion.  He  must  exercise  his  judgment 
in  expounding  the  laws  and  resolutions  of  Congress  under  which 
he  is  from  time  to  time  required  to  act. 

That  the  decision  of  the  questions  presented  to  the  Secretary  of 
the  Interior  was  no  merely  formal  or  ministerial  act  is  shown  beyond 
the  necessity  of  argument  by  a  perusal  of  the  foregoing  statement 
of  the  issues  presented  by  this  record  for  the  decision  of  the  Sec- 
retary. Whether  he  decided  right  or  wrong,  is  not  the  question. 
Having  jurisdiction  to  decide  at  all,  he  had  necessarily  jurisdiction, 
and  it  was  his  duty  to  decide  as  he  thought  the  law  was,  and  the 
courts  have  no  power  whatever  under  those  circumstances  to  re- 
view his  determination  by  mandamus  or  injunction.  The  court  has 
no  general  supervisory  power  over  the  officers  of  the  Land  Depart- 
ment, by  which  to  control  their  decisions  upon  questions  within  their 
jurisdiction.  If  this  writ  were  granted  we  would  require  the  Sec- 
retary of  the  Interior  to  repudiate  and  disaffirm  a.  decision  which 
he  regarded  it  his  duty  to  make  in  the  exercise  of  that  judgment  which 
is  reposed  jii  him  by  law,  and  we  should  require  him  to  come  to  a 
determination  upon  the  issues  involved  directly  opposite  to  that  which 
he  had  reached,  and  which  the  law  conferred  upon  him  the  jurisdic- 
tion to  make. 

]\Iandamus  has  never  been  regarded  as  the  proper  writ  to  control 
the  judgment  and  discretion  of  an  officer  as  to  the  decision  of  a 
matter  which  the  law  gave  him  the  power  and  imposed  upon  him  the 
duty  to  decide  for  himself.  The  writ  never  can  be  used  as  a  sub- 
stitute for  a  writ  of  error.  Nor  does  the  fact  that  no  writ  of  er- 
ror will  lie  in  such  a  case  as  this,  by  which  to  review  the  judgment 
of  the  Secretary,  furnish  any  foundation  for  the  claim  that  manda- 
mus may  therefore  be  awarded.  The  responsibility  as  well  as  the 
power  rests  with  the   Secretary,  uncontrolled  by  the  courts. 

Neither  the  case  of  Roberts  v.  United  States,  176  U.  S.  221,  20 
Sup.  Ct.  376,  44  L.  Ed.  443,  nor  that  of  American  School  of  Mag- 
netic Healing  v.  McAnnulty,  187  U.  S.  94,  23  Sup.  Ct.  33,  47  L. 
Ed.  90,  decides  anything  opposing  these  views. 

In  the  Roberts  Case  it  was  simply  decided  that  the  duty  of  the 
Treasurer  to  pay  the  money  in  question  in  that  case  was  ministerial 
in  its  nature,  and  should  have  been  performed  by  him  on  demand, 


048  RELIEF  AGAINST  ADMINISTRATIVE   ACTION.  (Part    2 

and  that,  therefore,  inanclamus  was  the  proper  remedy  for  his  fail- 
ure to  do  it. 

In  the  McAnnulty  Case  it  was  held  that  the  order  of  the  Post- 
master General  to  the  postmaster  in  the  city  of  Nevada,  not  to  de- 
liver the  mail  to  the  relator,  was  not  a  justification  for  such  refusal, 
because  the  order  was  given  without  authority  of  law,  and  the  post- 
master could,  notwithstanding  such  order,  be  compelled  by  mandamus 
to  do  his  duty  and  deliver  the  mail.  The  case  has  no  relevancy  to 
the  one  in  hand. 

We  are  so  clearly  of  opinion  that  the  decision  of  the  defendant  in 
this  case  was  judicial  in  its  nature  that  further  argument  upon  the 
subject  is  needless. 

The  judgment  of  the  Court  of  Appeals  of  the  District  of  Columbia 
is  affirmed.^- 


SECTION   81.— PENSIONS 


UNITED  STATES  ex  rel.  DUNEAP  v.  BLACK,  Commissioner  of 
Pensions.  (No.  991.)  SAME  ex  rel.  ROSE  v.  SAME.  (No.  992.) 
SAME  ex  rel.  MILLER  v.  SAME.     (No.  993.) 

(Supreme  Court  of  United  States,  1888.     128  U.  S.  40,  0  Sup.  Ct.  12, 
32  L.   Ed.  354.) 

Errors  to  the  Supreme  Court  of  the  District  of  Columbia. 

Bradley,  J,  These  cases  were  argued  together,  but  it  will  be 
convenient  to  consider  them  separately,  in  the  order  in  which  they 
stand  on  the  docket. 

No.  991  was  an  application  by  Oscar  Dunlap,  the  relator,  to  the 
Supreme  Court  of  the  District  of  Columbia,  for  a  writ  of  mandamus 
to  be  directed  to  the  respondent.  Black,  as  Commissioner  of  Pensions, 
commanding  him  to  reissue  to  the  relator  his  pension  certificate  for 
$25  per  month  from  June  6,  1866;  $31.25  per  month  from  June  4, 
1872;  $50  per  month  from  June  4,  1874;  and  $72  per  month  from 
June  17,  1878 — first  deducting  all  sums  paid  relator  under  previous 
pensions. 

By  Act  March  3,  1873,  c.  234,  §  4,  17  Stat.  569  (Rev.  St.  §  4698 
[U.  S.  Comp.  St.  1901,  p.  3235]),  it  was  provided  that  a  pension  of 
$31.25  per  month  should  be  allowed  to  all  persons  who,  while  in  the 

4  2  See,  also,  United  States  v.  Jones,  131  U.  S.  1,  9  Sup.  Ct.  6G9,  33  L.  Ed. 
90  (1888),  ante,  p.  382. 

Jurisdictional  error  in  audit  and  allowance  of  claims,  see  Board  of  Super- 
visors of  Richmond  Co.  v.  Ellis,  59  N.  Y.  620  (1875),  and  Dillon,  Municipal 
Corporations,  §  504. 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND   JUDICIAL   CONTROL.  G49 

military  or  naval  service,  had  lost  their  sight,  or  hoth  hands  or  hotli 
feet,  or  had  been  permanently  and  totally  disabled,  so  as  to  require 
the  regular  aid  and  attendance  of  another  person ;  and  a  pension  of 
$24  per  month  to  those  who  had  lost  one  hand  and  one  foot;  and 
$18  per  month  to  those  who  had  lost  either  one  hand  or  one  foot ; 
and  other  less  pensions  for  lesser  injuries — any  increase  of  pension 
to  commence  from  the  date  of  the  examining  surgeon's  certificate. 
By  Act  June  18,  1874,  c.  298,  18  Stat.' 78  (Supp.  Rev.  St.  39  [U. 
S.  Comp.  St.  1901,  p.  323G]),  it  was  provided  that,  in  cases  of  blind- 
ness or  loss  of  both  hands  or  both  feet,  or  total  helplessness,  requir- 
ing the  regular  and  personal  aid  of  another  person,  the  pension  should 
be  increased  from  $31.25  to  $50  per  month.  By  Act  Feb.  28,  1877, 
c.  73,  19  Stat.  264  (Supp.  Rev.  St.  282  [U.  S.  Comp.  St.  1901,  p. 
3236]),  it  was  provided  that  those  who  had  lost  one  hand  and  one 
foot  should  be  entitled  to  a  pension  for  each  of  such  disabilities  at 
the  rate  of  existing  laws,  which  made  the  total  pension  $36  per 
month.  The  relator,  in  April,  1877,  applied  for  the  benefit  of  this 
law,  and  it  was  granted  to  him.  By  Act  June  16,  1880,  c.  236,  21 
Stat.  281  (Supp.  Rev.  St.  560  [U.  S.  Comp.  St.  1901,  p.  3237]),  it 
was  enacted  that  all  those  then  (at  the  date  of  the  act)  receiving  a 
pension  of  $50  per  month  under  the  act  of  June  18,  1874,  should  re- 
ceive $72  per  month   from  June   17,  1878. 

'After  the  last  act  was  passed,  the  relator  applied  for  the  increase 
allowed  by  it.  The  Commissioner  of  Pensions,  being  of  opinion  that 
he  did  not  come  within  its  terms,  rejected  the  application,  but  grant- 
ed him  a  certificate  for  a  pension  of  $50  per  month  under  the  act 
of  1874,  to  be  received  from  May  25,  1881,  the  date  of  his  medical 
examination.  The  petition  for  mandamus  sets  out  the  decision  of 
the  Commissioner  in  full,  in  which  it  is  conceded  that  the  relator  has 
become  permanently  disabled.  The  following  is  an  extract  from  the 
decision,  to-wit:  "Washington,  D.  C,  October  15,  1887. 

"In  this  case  the  application  of  the  claimant  for  rerating  and  for 
increase  will  be  allowed  at  $50  per  month  from  May  25,  1881,  the 
date  of  the  first  medical  examination  under  the  claimant's  applica- 
tion of  June  26,  1880.  This  rating  is  allowed  under  the  act  of  June 
18,  1874;  it  sufficiently  appearing  by  the  evidence  in  this  case  that 
the  claimant  has  lost  both  a  hand  and  a  foot,  and  at  the  same  time 
has  been  so  additionally  injured  in  the  head  as,  from  a. period  prior 
to  the  rerating  or  increase  in  this  case,  to  render  him  totally  and 
permanently  helpless,  requiring  from  thence  until  now  the  regular 
personal  aid  and  attendance  of  another  person.  The  reason  why 
the  claimant's  rating  is  not  advanced  to  $72  per  month  is  that  he  was 
not  on  the  16th  of  June,  1880  [the  date  of  the  act]  receiving  pension  at 
the  rate  of  $50  per  month,  nor  was  he  entitled  to  receive  a  pension 
of  $50  per  month  at  that  date,  for  the  reason  that,  while  the  degree 
of  helplessness  which  has  been  shown  was  that  contemplated  by  the 


G50  RELIEF   AGAINST   ADMIXI.STRATIVE   ACTION.  (Part    2 

law,  the  claimant  himself  (neither  on  his  own  motion,  nor  under  the 
guidance  of  those  who  are  legally  responsible  for  his  actions  in  this 
claim)  had  not  made  application  to  be  rated  in  pursuance  of  the  act 
of  June  18,  1874,  but,  on  the  contrary  thereof,  had  asked  to  be  rated 
ami  had  been  rated  at  $36  per  month,  under  the  act  of  February  28, 
1877." 

The  decision  proceeds  to  discuss  further  the  reasons  for  the  con- 
clusion to  which  the  commissioner  had  come. 

The  relator,  by  his  counsel,  strenuously  contends  that  the  conces- 
sion made  by  the  commissioner  with  regard  to  the  disability  of  the 
relator  shows  that  it  was  his  clear  duty  to  have  granted  a  certificate 
for  the  larger  pension  of  $72  per  month.  The  following  passage  in 
the  petition  for  mandamus  shows  the  position  taken  by  the  relator: 
"And  your  relator  further  says  that  the  respondent  has  thus  express- 
ly found  the  facts  in  your  relator's  case  to  be  ( 1)  that  while  your  rela- 
tor was  in  the  military  service  *  *  *  he  sustained  such  wounds 
and  injuries  as  resulted  in  the  loss  of  his  right  hand  and  right  foot, 
and  at  the  same  time  sustaining  injury  to  the  head;  (2)  that  your 
relator  was  thereby  rendered  'totally  and  permanently  helpless,  re- 
quiring from  thence  till  now  the  regular  aid  and  attendance  of  an- 
other person';  and  (3)  that  your  relator  applied  to  the  Commissioner 
of  Pensions  on  June  26,  1880,  for  pension  on  account  thereof.  And 
your  relator  says  that  upon  this  finding  of  the  facts  whether  he  is 
entitled  to  a  rerating  and  an  increase  of  pension  from  date  of  dis- 
charge, so  as  to  give  unto  him  a  pension  commensurate  with  his  dis- 
abilities so  found  to  exist  by  the  respondent,  is  a  question  of  law ; 
and  that  it  does  not  lie  in  the  discretionary  power  of  the  respond- 
ent, as  Commissioner  of  Pensions,  to  deny  or  in  any  wise  abridge 
his  rights  with  respect  thereto." 

This  extract  shows  the  theory  of  the  petitioner,  and  the  doctrine 
which  he  invokes  in  support  of  his  application.  We  have  been  more 
full  in  stating  the  facts  of  the  case  in  order  that  the  legal  grounds 
on  which  that  application  is  based  may  clearly  appear.  The  case 
does  not  require  an  extended  discussion.  The  questions  of  law  on 
which  it  depends  have  been  closed  by  repeated  decisions  of  this  court. 

The  amenability  of  an  executive  officer  to  the  writ  of  mandamus, 
to  compel  him  to  perform  a  duty  required  of  him  by  law,  was  dis- 
cussed by  Chief  Justice  Marshall  in  his  great  opinion  in  the  case  of 
Marbury  v.  Madison,  1  Cranch,  137,  2  L.  Ed.  60;  and  the  radical 
distinction  was  there  pointed  out  between  acts  performed  by  such 
officers  in  the  exercise  of  their  executive  functions,  which  the  Chief 
Justice  calls  political  acts,  and  those  of  a  mere  ministerial  character ; 
and  the  rule  was  distinctly  laid  down  that  the  writ  will  not  be  issued 
in  the  former  class  of  cases,  but  will  be  issued  in  the  latter.  In 
that  case  President  Adams  had  nominated,  and  the  Senate  had  con- 
firmed, Marbury  as  a  justice  of  the  peace  of  the  District  of  Colum- 
bia ;   and  a  commission  in  due  form  was  signed  by  the  President  ap- 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND   JUDICIAL   CONTROL.  651 

pointing-  him  such  justice,  and  the  seal  of  the  United  States  was 
ckily  affixed  thereto  by  the  Secretary  of  State ;  but  the  commission 
had  not  been  handed  to  Marbury  when  the  offices  of  the  govern- 
ment were  transferred  to  the  administration  of  President  Jefferson. 
Mr.  JNIadison,  the  new  Secretary  of  State,  refused  to  deUver  the  com- 
mission, and  a  mandamus  was  apphed  for  to  this  court  to  compel 
him  to  do  so.  The  court  held  that  the  appointment  had  been  made 
and  completed,  and  that  Marbury  was  entitled  to  his  commission, 
and  that  the  delivery  of  it  to  him  was  a  mere  ministerial  act,  which 
involved  no  further  official  discretion  on  the  part  of  the  Secretary, 
and  could  be  enforced  by  mandamus.  But  the  court  did  not  issue 
the  writ,  because  it  would  have  been  an  exercise  of  original  juris- 
diction which  it  did  not  possess. 

While  this  opinion  will  always  be  read  by  the  student  with  in- 
terest and  profit,  it  has  not  been  considered  as  invested  with  absolute 
judicial  authority,  except  on  the  question  of  the  original  jurisdiction 
of  this  court.  The  decision  on  this  point  has  made  it  necessary  for 
parties  desiring  to  compel  an  officer  of  the  government  to  perform 
an  act  in  which  they  are  interested  to  resort  to  the  highest  court  of 
the  District  of  Columbia  for  redress.  It  has  been  held  in  numerous 
cases,  and  was  held  after  special  discussion  in  the  cases  of  Kendall 
v.  U.  S.,  13  Pet.  524,  9  L.  Ed.  1181,  and  U.  S.  v.  Schurz,  103  U. 
S.  378,  36  L.  Ed.  167,  that  the  former  Circuit  Court  of  the  Dis- 
trict, and  the  present  Supreme  Court  of  the  District,  respectively, 
were  invested  with  plenary  jurisdiction  on  the  subject.  On  this  point 
there  is  no  further  cjuestion. 

The  two  leading  cases  which  authoritatively  show  when  the  Su- 
preme Court  of  the  District  may,  and  when  it  may  not,  grant  a  man- 
damus against  an  executive  officer,  are  the  above-cited  case  of  Ken- 
dall V.  U.  S.,  13  Pet.  534,  9  L.  Ed.  1181,^^  and  Decatur  v.  Paulding, 
14  Pet.  497,  10  L.  Ed.  359.**  The  subsequent  cases  have  followed 
the  principles  laid  down  in  these,  and  do  little  more  than  illustrate  and 
apply  them. 

In  the  former  case  the  mandamus  was  granted,  and  the  decision 
was  affirmed  by  this  court.  The  case  was  shortly  this :  Stockton  & 
Stokes,  as  contractors  for  carrying  the  mails,  had  certain  claims  against 
the  government  for  extra  services,  which  they  insisted  should  be  cred- 
ited in  their  accounts,  and  a  controversy  arose  between  them  and 
che  Post-Office  Department  on  the  subject.  Congress  passed  an  act 
for  their  relief,  by  which  the  Solicitor  of  the  Treasury  was  authorized 
and  directed  to  settle  and  adjust  their  claims,  and  make  them  such 
allowances  as  upon  a  full  examination  of  all  the  evidence  might  seem 
to  be  equitable  and  right;  and  the  Postmaster  General  was  directed 
to  credit  them  with  whatever  sums  the  Solicitor  should  decide  to  be 
due  them.     The  Solicitor,   after  due  investigation,  made  his   report, 

4  3  See  ante,  p.  454.  ^4  See  ante,  p.  43S. 


652  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

and  stated  the  sums  due  to  Stockton  &  Stokes  on  the  claims  made 
by  them;  but  the  Postmaster  General,  Mr.  Kendall,  refused  to  give 
them  credit  as  directed  by  the  law.  This  the  court  held  he  could  be 
compelled  to  do  by  mandamus,  because  it  was  simply  a  ministerial 
duty  to  be  performed,  and  not  an  official  act  requiring-  any  exercise 
of  judgment  or  discretion.  This  court,  through  Mr.  Justice  Thomp- 
son, said :  ''The  act  required  by  the  law  to  be  done  by  the  Postmaster 
General  is  simply  to  credit  the  relators  with  the  full  amount  of  the 
award  of  the  Solicitor.  This  is  a  precise,  definite  act,  purely  min- 
isterial, and  about  which  the  Postmaster  General  had  no  discretion 
whatever.  The  law  upon  its  face  shows  the  existence  of  accovmts 
between  the  relators  and  the  Post-Office  Department.  No  money  was 
required  to  be  paid,  and  none  could  be  drawn  from  the  treasury  with- 
out further  legislative  provision,  if  this  credit  should  overbalance 
the  debit  standing  against  the  relators.  But  this  was  a  matter  with 
which  the  Postmaster  General  had  no  concern.  Pie  was  not  called 
upon  to  furnish  the  means  of  paying  such  balance,  if  any  should  be 
found.  He  was  simply  required  to  give  the  credit.  This  was  not 
an  official  act  in  any  other  sense  than  being  a  transaction  in  the 
department  where  the  books  and  accounts  were  kept;  and  was  an 
official  act  in  the  same  sense  that  an  entry  in  the  minutes  of  a  court, 
pursuant  to  an  order  of  the  court,  is  an  official  act.'  There  is  no 
room  for  the  exercise  of  any  discretion,  official  or  otherwise ;  all 
that  is  shut  out  by  the  direct  and  positive  command  of  the  law,  and 
the  act  required  to  be  done  is,  in  every  just  sense,  a  mere  minis- 
terial act." 

In  the  other  case  (Decatur  v.  Paulding)  the  mandamus  was  re- 
fused by  the  Circuit  Court,  and  that  decision  was  also  affirmed  by 
this  court.  The  case  was  this:  On  the  3d  of  March,  1837,  Congress 
passed  an  act  giving  to  the  widow  of  any  officer  who  had  died  in 
the  naval  service  a  pension  equal  to  half  of  his  monthly  pay  from  the 
time  of  his  death  until  her  death  or  marriage.  On  the  same  day 
Congress  passed  a  resolution  granting  a  pension  to  Mrs.  Decatur, 
widow  of  Stephen  Decatur,  for  five  years,  commencing  June  30, 
183i,  and  the  arrearages  of  the  half  pay  of  a  post  captain  from 
Commodore  Decatur's  death  to  the  30th  of  June,  1834.  Mrs.  Decatur 
applied  for  and  received  her  pension  under  the  general  law,  with  a 
reservation  of  her  rights  under  the  resolution,  claiming  the  pension 
granted  by  that  also.  The  Secretary  of  the  Navy,  acting  under  the 
opinion  of  the  Attorney  General,  decided  that  she  could  not  have 
both.  Thereupon  she  applied  for  a  mandamus  to  compel  the  Sec- 
retary to  comply  with  the  resolution  in  her  favor.  Chief  Justice 
Taney  delivered  the  opinion  of  the  court,  and  laid  down  the  law 
in  terms  that  have  never  been  departed  from.  We  can  only  quote  a 
single  passage  from  this  opinion. 

The  Chief  Justice  says :  "The  duty  required  by  the  resolution  was 
to  be  performed  by  him  [the  Secretary  of  the  Navy]   as  the  head  of 


Ch.  9)       JUUISDICTIOX,  CONCLUSIVENESS,  AND  JUDICIAL   CONTROL.  653 

one  of  the  executive  departments  of  the  government,  in  the  ordinary 
dischargee  of  his  official  duties.  In  general,  such  duties,  whether  im- 
posed by  act  of  Congress  or  by  resolution,  are  not  mere  ministerial 
duties.  The  head  of  an  executive  department  of  the  government,  in 
the  administration  of  the  various  and  important  concerns  of  his  office, 
is  continually  required  to  exercise  judgment  and  discretion.  He  must 
exercise  his  judgment  in  expounding  the  laws  and  resolutions  of  Con- 
gress, under  which  he  is  from  time  to  time  required  to  act.  If  he 
doubts,  he  has  a  right  to  call  on  the  Attorney  General  to  assist  him 
with  his  counsel ;  and  it  would  be  difficult  to  imagine  why  a  legal 
adviser  was  provided  by  law  for  the  heads  of  the  departments,  as 
well  as  for  the  President,  unless  their  duties  were  regarded  as  ex- 
ecutive, in  which  judgment  and  discretion  were  to  be  exercised.  If 
a  suit  should  come  before  this  court  which  involved  the  construction 
of  any  of  these  laws,  the  court  certainly  would  not  be  bound  to  adopt 
the  construction  given  by  the  head  of  a  department ;  and,  if  they  sup- 
posed his  decision  to  be  wrong,  they  would,  of  course,  so  pronounce 
their  judgment.  But  their  judgment  upon  the  construction  of  a 
law  must  be  given  in  a  case  in  which  they  have  jurisdiction,  and  in 
which  it  is  their  duty  to  interpret  the  act  of  Congress,  in  order  to 
ascertain  the  rights  of  the  parties  in  the  cause  before  them.  The 
court  could  not  entertain  an  appeal  from  the  decision  of  one  of  the 
Secretaries,  nor  revise  his  judgment,  in  any  case  where  the  law  au- 
thorized him  to  exercise  discretion  or  judgment.  Nor  can  it  by 
mandamus  act  directly  upon  the  officer,  and  guide  and  control  his 
judgment  or  discretion  in  the  matters  committed  to  his  care,  in  the 
ordinary  discharge  of  his  official  duties.  The  case  before  us  il- 
lustrates these  principles,  and  shows  the  difference  between  execu- 
tive and  ministerial  acts." 

The  Chief  Justice  then  goes  on  to  show  that  the  decision  of  the 
Secretary  of  the  Navy  in  that  case  was  entirely  executive  and  offi- 
cial in  its  character,  and  that  in  this  respect  the  case  differed  entirely 
from  that  of  Kendall  v.  U.  S. 

The  principle  of  law  deducible  from  these  two  cases  is  not  difficult 
to  enounce.  The  court  will  not  interfere  by  mandamus  with  the  ex- 
ecutive officers  of  the  government  in  the  exercise  of  their  ordinary 
official  duties,  even  where  those  duties  require  an  interpretation  of 
the  law,  the  court  having-  no  appellate  power  for  that  purpose;  but 
wdien  they  refuse  to  act  in  a  case  at  all,  or  when,  by  special  statute 
or  otherwise,  a  mere  ministerial  duty  is  imposed  upon  them — that 
is,  a  service  which  they  are  bound  to  perform  without  further  ques- 
tion— then,  if  they  refuse,  a  mandamus  may  be  issued  to  compel 
them.  Judged  by  this  rule,  the  present  case  presents  no  difficulty. 
The  Commissioner  of  Pensions  did  not  refuse  to  act  or  decide.  He 
did  act  and  decide.  He  adopted  an  interpretation  of  the  law  adverse 
to  the  relator,  and  his  decision  was  confirmed  by  the  Secretary  of 
the  Interior,  as  evidenced  by  his  signature  of  the  certificate.    Whether, 


G54  RKLIKF   ACxAINST  ADMIXISTRATIVI<:   ACTION.  (Part    2 

if  the  law  were  properly  before  lis  for  consideration,  we  should  be 
of  the  same  opinion,  or  of  a  different  opinion,  is  of  no  consequence 
in  the  decision  of  this  case.  We  have  no  appellate  power  over  the 
Commissioner,  and  no  right  to  review  his  decision.  That  decision, 
and  his  action  taken  thereon,  were  made  and  done  in  the  exercise  of 
his  official  functions.  They  were  by  no  means  merely  ministerial 
acts.    • 

The  decisions  of  this  court,  which  have  been  rendered  since  the 
cases  referred  to,  corroborate  and  confirm  all  that  has  been  said. 
The  following  are  the  most  important,  to  wit:     Brashear  v.  Mason, 

6  How.  92,  12  L.  Ed.  357;  U.  S.  v.  Guthrie,  17  How.  284,  15  L. 
Ed.  102  ;  Commissioner  v.  Whiteley,  4  Wall.  522,  IS  L.  Ed.  335 ; 
Georgia  v.  Stanton,  G  Wall.  50,  18  E.  Ed.  721 ;    Gaines  v.  Thompson, 

7  Wall.  347.  19  E.  Ed.  G2  ;  U.  S.  v.  Schurz,  102  U.  S.  378,  26  L. 
Ed.  167;  Butterworth  v.  Hoe,  112  U.  S.  50,  5  Sup.  Ct.  25,  28  L. 
Ed.  GoG.  In  the  two  last  cases  cited,  the  mandamus  was  granted ; 
and  they  were  cases  in  which  it  was  held  that  a  mere  ministerial 
duty  was  to  be  performed  by  the  officer. 

In  U.  S.  v.  Schurz  the  question  related  to  a  patent  for  land  claimed 
by  a  pre-emptor.  All  the  proceedings  had  been  gone  through,  the 
right  of  the  applicant  had  been  affirmed,  the  patent  had  been  made 
out  in  the  land  office,  signed  by  the  President,  sealed  with  the  land 
office  seal,  countersigned  by  the  recorder  of  the  land  office,  recorded 
in  the  proper  book,  and  transmitted  to  the  local  land  officers  for  de- 
livery ;  but  delivery  was  refused  because  instructions  had  been  re- 
ceived from  the  Commissioner  to  return  the  patent.  The  plea  was 
that  it  had  been  discovered  that  the  lands  belonged  to  a  town  site. 
The  court  held  that  this  was  an  insufficient  plea;  that  the  title  had 
passed  to  the  applicant,  and  he  was  entitled  to  his  patent,  subject  to 
any  equity  which  other  parties  might  have  to  the  land,  or  to  a  pro- 
ceeding for  setting  the  patent  aside;  and  that  the  duty  of  the  Com- 
missioner or  Secretary  of  the  Interior  had  become  a  mere  ministerial 
duty  to  deliver  the  instrument,  as  was  held  in  Marbury  v.  Madison, 
in  relation  to  the  commission  of  Alarbury  as  justice  of  the  peace.  Of 
course,  this  case  is  entirely  dift'erent  from  the  case  now  under  con- 
sideration. 

The  case  of  Butterworth  v.  Hoe  was  very  similar  in  principle  to 
that  of  U.  S.  V.  Schurz.  The  Commissioner  of  Patents  had  decided 
in  favor  of  the  right  of  one  Gill,  an  applicant  for  a  patent,  in  a  case 
of  interference,  and  adjudged  that  a  patent  should  issue  to  his  as- 
signs accordingly.  An  appeal  was  taken  to  the  Secretary  of  the  In- 
terior, who  reversed  the  decision  of  the  Commissioner.  The  latter 
thereupon,  and  for  that  reason,  refused  to  issue  a  patent.  It  was 
a  question  whether  an  appeal  lay  to  the  Secretary  of  the  Interior,  and 
this  court  held  that  it  did  not,  and  that  he  had  no  jurisdiction  in  the 
matter.  The  court,  therefore,  held  that  the  patent  ought  to  be  is- 
sued in  accordance  with  the  decision  of  the  Commissioner,  and  that 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL   CONTROL.  G55 

the  mere  issue  of  the  patent  was  a  ministerial  matter  for  which  a 
mandamus  would  lie.  This  case,  like  that  of  U.  S.  v.  Schurz,  is  un- 
like the  present.  All  deliberation  had  ceased ;  the  right  of  Gill,  the 
applicant,  was  adjudged;  there  was  nothing-  to  be  done  but  to  de- 
liver to  the  party  the  documentary  evidence  of  his  title.  That  was  a 
mere  ministerial  matter.  We  think  that  the  mandamus  was  prop- 
erly refused,  and  the  judgment  of  the  Supreme  "Court  of  the  Dis- 
trict is  affirmed. 

No.  993  is  similar  in  all  essential  respects  to  the  preceding,  and 
the  decision  must  be  the  same.    Judgment  affirmed. 

No.  993  differs  materially  from  Nos.  991  and  992.  Charles  R. 
Miller,  the  relator,  having  made  an  unsuccessful  application  to  the 
Commissioner  of  Pensions  for  an  increase  of  his  pension,  finally 
appealed  to  the  Secretary  of  the  Interior,  and  in  his  petition  for  man- 
damus says  as  follows,  to  wit : 

"That  the  Secretary,  upon  a  personal,  careful  inspection  of  the  rec- 
ord, and  all  the  evidence  filed  therein  in  his  case,  and  on  due  consid- 
eration thereof,  made  and  rendered  the  following  official  decision : 
'Department  of  the  Interior,  Washington,  D.  C,  February  12,  1885. 
The  Commissioner  of  Pensions — Sir:  Herewith  are  returned  the 
papers  in  the  pension  claim  (certificate  No.  55,356)  of  Charles  R. 
]\Iiller.  It  appears  from  the  papers  that  Mr.  Miller's  claim  was  be- 
fore this  department  on  the  6th  inst.,  and  it  was  held  that  the  pen- 
sioner is  greatly  disabled,  and  it  is  evident  from  the  papers  in  his 
case  that  he  is  utterly  unable  to  do  any  manual  labor,  and  he  is  there- 
fore entitled  to  $30  per  month  under  the  act  of  March  3,  1883,  which 
has  been  allowed  him  by  your  office.  Since  the  departmental  deci- 
sion above  referred  to,  the  papers  in  the  claim  have  been  carefully 
reconsidered  by  the  department,  and  a  personal  examination  of  the 
pensioner  made;  and  it  satisfactorily  appears  that  he  is  unable  to  put 
on  his  shoe  and  stocking  on  the  foot  of  his  injured  leg,  for  the  rea- 
son that  the  nearest  point  that  can  be  reached  by  hand  from  foot 
is  23  inches,  and  for  the  further  reason  that  from  "necrosis  of  the 
lower  vertebrae  of  spine,  producing  anchylosis  of  the  spinal  column 
and  destruction  of  some  of  the  spinal  nerves,"  he  is  unable  to  bend 
his  back.  After  a  careful  review  of  all  the  facts  in  this  case,  the 
department  is  constrained  to  think  that  the  pensioner  comes  under 
the  meaning  of  the  laws  granting  pensions  to  those  persons  who  re- 
quire aid  and  attendance.  The  decision  of  the  6th  inst.  is  therefore 
overruled.     Very  respectfully,  H.  M.  Teller,  Secretary.' 

"And  your  orator  avers  that  the  said  official  decision  of  the  Sec- 
retary of  the  Interior,  so  made  as  aforesaid,  was  a  final  adjudication 
of  his  claim  in  his  favor,  and  conclusively  establishes  his  right  under 
the  laws  to  be  rerated  at  $25  per  month  from  June  6,  1866  ;  $31.25 
per  month  from  June  4,  1872 ;  $50  per  month  from  June  4,  1874 ; 
and  $72  per  month  from  June  17,  1878 — and  to  be  paid  the  difference 
monthly  between  these  sums  and  what  has  been  allowed  him;    and 


GuG  UELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

all  that  remained  for  the  Commissioner  of  Pensions  to  do  in  the 
premises  was  the  simple  ministerial  duty  of  accordingly  carrying-  the 
said  final  official  decision  of  the  Secretary  into  execution." 

The  petition  goes  on  to  state  that  the  former  Commissioner  of 
Pensions  refused  to  carry  out  the  Secretary's  decision  to  its  full 
extent,  and  that  the  present  Commissioner,  the  respondent,  still  re- 
fuses. If,  as  the  petition  suggests,  the  Commissioner  of  Pensions 
refuses  to  carry  out  the  decision  of  his  superior  officer,  there  would 
seem  to  be  prima  facie  ground  for  at  least  calling  upon  him  to  show 
cause  why  a  mandamus  should  not  issue.  This  was  all  that  the 
petitioner  asked,  and  this  the  court  refused. 

As  a  general  rule,  when  a  superior  tribunal  has  rendered  a  deci- 
sion binding  on  an  inferior,  it  becomes  the  ministerial  duty  of  the 
latter  to  obey  it  and  carry  it  out.  So  far  as  respects  the  matter  de- 
cided, there  is  no  discretion  or  exercise  of  judgment  left.  This  is 
the  constant  course  in  courts  of  justice.  The  appellate  court  will  not 
hesitate  to  issue  a  mandamus  to  compel  obedience  to  its  decisions. 
The  appellate  tribunal  in  the  present  case  is  the  Secretary  of  the 
Interior,  who  has  no  power  to  enforce  his  decisions  by  mandamus, 
or  any  process  of  like  nature;  and  therefore  a  resort  to  a  judicial 
tribunal  would  seem  to  be  necessary,  in  order  to  afford  a  remedy  to 
the  party  injured  by  the  refusal  of  the  Commissioner  to  carry  out  his 
decision. 

But  it  is  suggested  that  removal  of  the  contumacious  subordinate 
from  office,  or  a  civil  suit  brought  against  him  for  damages,  would 
be  effectual  remedies.  We  do  not  concur  in  this  view.  A  suit  for 
damages,  if  it  could  be  maintained,  would  be  an  uncertain,  tedious, 
and  ineffective  remedy,  attended  with  many  contingencies,  and  bur- 
dened with  onerous  expenses.  Removal  from  office  would  be  still 
more  unsatisfactory.  It  would  depend  on  the  arbitrary  discretion 
of  the  President,  or  other  appointing  power,  and  is  not  such  a  remedy 
as  a  citizen  of  the  United  States  is  entitled  to  demand.  We  think 
that  the  case  suggested  by  the  petition  is  one  in  which  it  would  be 
proper  for  the  court  to  interfere  by  mandamus.  Whether  it  will  turn 
out  to  be  such,  when  all  the  circumstances  are  known,  can  be  ascer- 
tained by  a  rule  to  show  cause;  and  such  a  rule,  we  think,  ought  to 
have  been  granted. 

The  judgment  of  the  court  below  is  therefore  reversed,  and  the  cause 
remanded,  with  instructions  to  grant  a  rule  to  show  cause  as  applied 
for  by  the  petitioner. 

Judgments  will  be  entered  separately  in  the  several  cases. 


Ch.  9)       JURISDICTION,  CONCLUSIVKNKSS,  AND   JUDICIAL   CONTUOL.         657 


SECTION  82.— POSTAL  ADMINISTRATION 


AMERICAN  SCHOOL  OF  MAGNETIC  HEALING  v.  Mc- 
ANNULTY. 

(Supreme  Court  of  United  States,   1!)()2.     187  U.   S.  M,  23  Sup.  Ct.  33, 
47   L.   Ed.  90.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Western 
District  of  Missouri  to  review  a  decree  dismissing  a  bill  to  enjoin  a 
postmaster  from  carrying  out  an  order  of  the  Postmaster  General  di- 
recting the  retention  of  letters  addressed  to  a  corporation.     Reversed. 

The  order  complained  of  was  as  follows : 

"Postoffice  Department, 
"Washington,  D.  C,  May  15,  1900. 

"It  having  been  made  to  appear  to  the  Postmaster  General,  upon 
evidence  satisfactory  to  him,  that  the  American  School  of  Magnetic 
Healing,  S.  A.  Weltmer,  president,  J.  H.  Kelly,  secretary,  and  J.  A. 
Kelly,  at  Nevada,  Missouri,  are  engaged  in  conducting  a  scheme  or  de- 
vice for  obtaining  money  through  the  mails  by  means  of  false  and 
fraudulent  pretenses,  representations,  and  promises,  in  violation  of  the 
act  of  Congress  entitled  'An  act  to  amend  certain  sections  of  the  Re- 
vised Statutes  relating  to  lotteries  and  for  other  purposes,  approved 
September  19,  1900.' 

"Now,  therefore,  by  authority  vested  in  him  by  said  act  and  by  the 
act  of  Congress  entitled  'An  act  for  the  suppression  of  lottery  traf- 
fic through  international  and  interstate  commerce  and  the  postal  serv- 
ice, subject  to  the  jurisdiction  and  laws  of  the  United  States,  approved 
March  2,  1895,'  the  Postmaster  General  hereby  forbids  you  to  pay 
any  postal  money  order  drawn  to  the  order  of  said  concern  and  per- 
sons, and  you  are  hereby  directed  to  inform  the  remitter  of  any  such 
postal  money  order  that  payment  thereof  has  been  forbidden,  and  that 
the  amount  thereof  will  be  returned  upon  the  presentation  of  a  dupli- 
cate money  order,  applied  for  and  obtained  under  the  regulations  of 
the  department. 

■'And  you  are  hereby  instructed  to  return  all  letters,  whether  reg- 
istered or  not,  and  other  mail  matter  which  shall  arrive  at  your  office 
directed  to  the  said  concern  and  persons,  to  the  postmasters  at  the 
offices  at  which  they  were  originally  mailed,  to  be  delivered  to  the 
senders  thereof,  with  the  word  'fraudulent'  plainly  written  or  stamped 
upon  the  outside  of  such  letters  or  matter.  Provided,  however, 
that  where  there  is  nothing  to  indicate  who  are  the  senders  of  letters 
not  registered,  or  other  matter,  you  are  directed  in  that  case  to  send 
Fr.  A  DM.  Law — 42 


658  RELIEF   AOAINST   ADMIXISTUATIVE   ACTION.  (Part    3 

such  letters  and  matter  to  the  dead-letter  office,  with  the  word  'fraud- 
ulent' plainly  written  or  stamped  thereon,  to  be  disposed  of  as  other 
dead  matter,  under  the  laws  and  regulations  applicable  thereto. 

"Ch.  Emory  Smith,  Postmaster  General. 

"To  the  Postmaster,  Nevada,  Missouri." 

Section  3!)29  of  the  Revised  Statutes  (U.  S.  Comp.  St.  1901,  p.  3686) 
provides 'as  follows:  "Sec.  3939.  The  Postmaster  General  may,  upon 
evidence  satisfactory  to  him  that  any  person  is  engaged  in  conducting 
any  fraudulent  lottery,  gift  enterprise,  or  scheme  for  the  distribution 
of  money,  or  of  any  real  or  personal  property,  by  lot,  chance,  or 
drawing  of  any  kind,  or  in  conducting  any  other  scheme  or  device  for 
obtaining  money  through  the  mails  by  means  of  false  or  fraudulent 
pretenses,  representations,  or  promises,  instruct  postmasters  at  any 
post  offices  at  which  registered  letters  arrive  directed  to  any  such  per- 
son to  return  all  such  registered  letters  to  the  postmasters  at  the  offi- 
ces of  which  they  were  originally  mailed,  with  the  word  "fraudulent' 
plainly  written  or  stamped  upon  the  outside  of  such  letters ;  and  all 
such  letters  so  returned  to  such  postmasters  shall  be  by  them  returned 
to  the  writers  thereof,  under  such  regulations  as  the  Postmaster  Gen- 
eral may  prescribe.  But  nothing  contained  in  this  title  shall  be  so 
construed  as  to  authorize  any  postmaster  or  other  person  to  open  any 
letter  not  addressed  to  himself." 

Section  4041  (U.  S.  Comp.  St.  1901,  p.  3749)  is  of  the  same  purport 
as  section  3939,  excepting  that  instead  of  providing  for  the  retention 
of  registered  letters,  it  forbids  the  payment  by  any  postmaster  to  the 
person  or  company  described  of  any  postal  money  orders  drawn  to  his 
or  its  order,  or  to  his  or  its  favor,  or  to  any  agent  of  any  such  per- 
son or  company,  and  it  provides  for  the  return  to  the  remitters  of  the 
sums  of  money  named  in  those  money  orders.  Section  4  of  the  act 
(Act  March  3,  1S95,  c.  191,  38  Stat.  693,  694  [U.  S.  Comp.  St.  1901, 
p.  3688])  amended  section  3939  of  the  Revised  Statutes  so  as  to  pro- 
vide for  the  retention  of  all  letters  instead  of  merely  registered  letters 
as  in  the  original  section. 

Before  the  issuing  of  the  written  order  by  the  Postmaster  General 
prohibiting  the  delivery  of  mail  matter  to  the  complainants,  and  pur- 
suant to  notice  from  the  Postmaster  General,  the  complainants  went 
before  that  official  at  Washington  and  had  a  hearing  before  him, 
and  gave  their  reasons  why  what  is  termed  a  "fraud  order"  should 
not  be  issued,  and  the  Postmaster  General,  after  hearing  evidence 
such  as  in  his  judgment  was  contemplated  by  the  sections  of  the  stat- 
utes above  mentioned,  issued  the  order  above  referred  to,  and  there- 
upon the  defendant  has  refused  to  permit  the  delivery  of  the  mail,  and 
assigns  as  his  only  reason  for  so  doing  that  it  would  be  in  violation 
of  the  order  of  the  Postmaster  General,  founded  upon  the  provisions 
of  the  statute  already  set  forth. 

The  complainants  asked  for  an  injunction  to  restrain  the  postmaster 
from  carrying  out  the  order  of  the  Postmaster  General,  and  that  a 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND   JUDICIAL   CONTROL.         G50 

decree  might  be  entered  perpetually  enjoining-  the  defendant  as  pray- 
ed for. 

The  defendant  demurred  to  the  complainants'  amended  bill  (1)  on 
the  ground  that  the  complainants  had  not  stated  any  such  case  as  en- 
titled them  to  any  relief;  (2)  because  the  complainants  had  not  stat- 
ed any  ground  for  equitable  relief  against  the  defendant,  and  had  not 
shown  any  reason  why  an  injunction  should  be  granted. 

The  court  sustained  the  demurrer,  and,  the  complainants  declining 
to  plead  further,  it  was  decreed  by  the  court  that  the  amended  bill  of 
the  complainants  was  insufficient  in  law  and  equity,  and  it  was  there- 
upon dismissed  at  complainants'  cost. 

The  case  arising  upon  demurrer,  it  was  admitted  that  the  business 
of  the  complainants  was  founded  "almost  exclusively  on  the  physical 
and  practical  proposition  that  the  mind  of  the  human  race  is  large- 
ly responsible  for  its  ills,  and  is  a  perceptible  factor  in  the  treating, 
curing,  benefiting,  and  remedying  thereof,  and  that  the  human  race 
does  possess  the  innate  power,  through  proper  exercise  of  the  faculty 
of  the  brain  and  mind,  to  largely  control  and  remedy  the  ills  that 
humanity  is  heir  to,  and  (complainants)  discard  and  eliminate  from 
their  treatment  what  is  commonly  known  as  Divine  Healing  and  Chris- 
tian Science,  and  they  are  confined  to  practical  scientific  treatment,  em- 
anating from  the  source  aforesaid." 

Mr.  Justice  Peckham  delivered  the  opinion  of  the  court.* ^ 

The  bill  of  the  complainants  as  amended  raises  some  grave  ques- 
tions of  constitutional  law  which,  in  the  view  the  court  takes  of  the 
case,  it  is  unnecessary  to  decide.  We  may  assume,  without  deciding 
or  expressing  any  opinion  thereon,  the  constitutionality  in  all  par- 
ticulars of  the  statutes  above  referred  to,  and  therefore  the  questions 
arising  in  the  case  will  be  limited  (1)  to  the  inquiry  as  to  whether  the 
action  of  the  Postmaster  General  under  the  circumstances  set  forth 
in  the  complainants'  bill  is  justified  by  the  statutes;  and  (2),  if  not, 
whether  the  complainants  have  any  remedy  in  the  courts.     *     *     * 

Second.  Conceding,  for  the  purpose  of  this  case,  that  Congress 
has  full  and  absolute  jurisdiction  over  the  mails,  and  that  it  may 
provide  who  may  and  who  may  not  use  them,  and  that  its  action  is 
not  subject  to  review  by  the  courts,  and  also  conceding  the  conclu- 
sive character  of  the  determination  by  the  Postmaster  General  of  any 
material  and  relevant  questions  of  fact  arising  in  the  administration 
of  the  statutes  of  Congress  relating  to  his  department,  the  question 
still  remains  as  to  the  power  of  the  court  to  grant  relief  where  the 
Postmaster  General  has  assumed  and  exercised  jurisdiction  in  a  case 
not  covered  by  the  statutes,  and  where  he  hac;  ordered  the  detention 
of  mail  matter,  when  the  statutes  have  not  granted  him  power  so 
to  order.  Has  Congress  intrusted  the  administration  of  these  statutes 
wdiolly  to  the  discretion  of  the  Postmaster  General,  and  to  such  an 

4  3  Only  a  portion  of  this  case  is  printed. 


GOO  RELIEF  AGAINST  ADMINISTRATIVE  ACTION.  (Part    2 

extent  that  his  determination  is  conclusive  upon  all  questions  arising 
under  those  statutes,  even  though  the  evidence  which  is  adduced  be- 
fore him  is  wholly  uncontradicted,  and  shows,  beyond  any  room  for 
dispute  or  doubt,  that  the  case  in  any  view,  is  beyond  the  statutes, 
and  not  covered  or  provided  for  by  them? 

That  the  conduct  of  the  post  office  is  a  part  of  the  administrative 
department  of  the  government  is  entirely  true,  but  that  does  not  nec- 
essarily and  always  oust  the  courts  of  jurisdiction  to  grant  relief  to 
a  party  aggrieved  by  any  action  by  the  head,  or  one  of  the  subordinate 
officials,  of  that  department,  which  is  unauthorized  by  the  statute 
under  which  he  assumes  to  act.  The  acts  of  all  its  officers  must  be 
justified  by  some  law,  and  in  case  an  official  violates  the  law  to  the 
injury  of  an  individual  the  courts  generally  have  jurisdiction  to  grant 
relief. 

The  Land  Department  of  the  United  States  is  administrative  in 
its  character,  and  it  has  been  frequently  held  by  this  court  that,  in 
the  administration  of  the  public  land  system  of  the  United  States, 
questions  of  fact  are  for  the  consideration  and  judgment  of  the  Land 
Department,  and  its  judgment  thereon  is  final.  Burfenning  v.  Chi- 
cago, St.  P.,  M.  &  O.  R.  Co.,  163  U.  S.  321,  16  Sup.  Ct.  1018,  41  L. 
Ed.  175;  Johnson  v.  Drew,  171  U.  S.  93,  99,  18  Sup.  Ct.  800,  43 
L.  Ed.  88,  91;  Gardner  v.  Bonestell,  180  U.  S.  362,  21  Sup.  Ct.  399, 
4.5  L.  Ed.  574. 

While  the  analogy  between  the  above-cited  cases  and  the  one  now 
before  us  is  not  perfect,  yet,  even  in  them  it  is  held  that  the  deci- 
sions of  the  officers  of  the  department  upon  questions  of  law  do 
not  conclude  the  courts,  and  they  have  power  to  grant  relief  to  an 
individual  aggrieved  by  an  erroneous  decision  of  a  legal  question  by 
department  officers. 

Thus  in  the  Burfenning  Case,  163  U.  S.  321,  16  Sup.  Ct.  1018,  41 
L.  Ed.  175,  a  tract  of  land  had  been  reserved  from  homestead  and 
pre-emption,  and  had  been  included  within  the  limits  of  an  incorporat- 
ed town,  notwithstanding  which  the  Land  Department  had  decided 
that  the  land  was  open  to  entry,  and  had  granted  a  patent  under  the 
statute  relating  to  homesteads.  The  court  said  that  "when,  by  act 
of  Congress,  a  tract  of  land  has  been  reserved  from  homestead  and 
])re-emption,  or  dedicated  to  any  special  purpose,  proceedings  in  the 
Land  Department  in  defiance  of  such  reservation  or  dedication,  al- 
though culminating  in  a  patent,  transfer  no  title,  and  may  be  chal- 
lenged in  an  action  at  law.  In  other  words,  the  action  of  the  Land 
Department  cannot  override  the  expressed  will  of  Congress,  or  con- 
vey away  public  lands  in  disregard  or  defiance  thereof." 

Plere  it  is  contended  that  the  Postmaster  General  has,  in  a  case 
not  covered  by  the  acts  of  Congress,  excluded  from  the  mails  letters 
addressed  to  the  complainants.  His  right  to  exclude  letters,  or  to 
refuse  to  permit  their  delivery  to  persons  addressed,  must  depend 
upon   some  law   of   Congress,   and   if   no    such    law   exists,   then   he 


Ch.  9)       JTJRISDICTIOX,  CONCLUSIVENESS,  AND   JUDICIAL   CONTROL.         661 

cannot  excliule  or  refuse  to  deliver  them.  Conceding,  arguendo,  that 
when  a  question  of  fact  arises,  which,  if  found  in  one  way,  would 
show  a  violation  of  the  statutes  in  question  in  some  particular,  the 
decision  of  the  Postmaster  General  that  such  violation  had  occurred, 
based  upon  some  evidence  to  that  efifect,  would  be  conclusive  and 
final,  and  not  the  subject  of  review  by  any  court,  yet  to  that  assump- 
tion must  be  added  the  statement  that,  if  the  evidence  before  the 
Postmaster  General,  in  any  view  of  the  facts,  failed  to  show  a  vio- 
lation of  any  federal  law,  the  determination  of  that  official  that  such 
violation  existed  would  not  be  the  determination  of  a  question  of 
fact,  but  a  pure  mistake  of  law  on  his  part,  because  the  facts,  being 
conceded,  whether  they  amounted  to  a  violation  of  the  statutes  would 
be  a  legal  question,  and  not  a  question  of  fact.  Being  a  question  of 
law  simply,  and  the  case  stated  in  the  bill  being  outside  of  the  stat- 
utes, the  result  is  that  the  Postmaster  General  has  ordered  the  re- 
tention of  letters  directed  to  complainants  in  a  case  not  authorized 
by  those  statutes.  To  authorize  the  interference  of  the  Postmaster 
General,  the  facts  stated  must,  in  some  aspect,  be  sufificient  to  permit 
him,  under  the  statutes,  to  make  the  order. 

The  facts,  which  are  here  admitted  of  record,  show  that  the  case 
is  not  one  which,  by  any  construction  of  those  facts,  is  covered  or 
provided  for  by  the  statutes  under  which  the  Postmaster  General  has 
assumed  to  act,  and  his  determination  that  those  admitted  facts  do 
authorize  his  action  is  a  clear  mistake  of  law  as  applied  to  the  ad- 
mitted facts,  and  the  courts,  therefore,  must  have  power  in  a  proper 
proceeding  to  grant  relief.  Otherwise,  the  individual  is  left  to  the 
absolutely  uncontrolled  and  arbitrary  action  of  a  public  and  admin- 
istrative officer,  whose  action  is  unauthorized  by  any  law,  and  is  in 
violation  of  the  rights  of  the  individual.  Where  the  action  of  such 
an  officer  is  thus  unauthorized,  he  thereby  violates  the  property  rights 
of  the  person  whose  letters  are  withheld. 

In  our  view  of  these  statutes  the  complainants  had  the  legal  right, 
under  the  general  acts  of  Congress  relating  to  the  mails,  to  have 
their  letters  delivered  at  the  post  office  as  directed.  They  had  violated 
no  law  which  Congress  had  passed,  and  their  letters  contained  checks, 
drafts,  money  orders,  and  money  itself,  all  of  which  were  their 
property  as  soon  as  they  were  deposited  in  the  various  post  offices 
for  transmission  by  mail.  They  allege,  and  it  is  not  difficult  to  see 
that  the  allegation  is  true,  that,  if  such  action  be  persisted  in,  these 
complainants  will  be  entirely  cut  off  from  all  mail  facilities,  and  their 
business  will  necessarily  be  greatly  injured,  if  not  wholly  destroyed, 
such  business  being,  so  far  as  the  laws  of  Congress  are  concerned, 
legitimate  and  lawful.  In  other  w^ords,  irreparable  injury  will  be 
done  to  these  complainants  by  the  mistaken  act  of  the  Postmaster 
General  in  directing  the  defendant  to  retain  and  refuse  to  deliver 
letters  addressed  to  them. 


6G2  RELIEF  AGAINST   ADMINISTRATIVE   ACTION.  (Part    2 

The  Postmaster  General's  order,  being  the  result  of  a  mistaken 
view  of  the  law,  could  not  operate  as  a  defense  to  this  action  on  the 
part  of  the  defendant,  though  it  might  justify  his  obedience  thereto 
until  some  action  of  the  court.  In  such  a  case  as  the  one  before  us 
there  is  no  adequate  remedy  at  law,  the  injunction  to  prohibit  the 
further  withholding  of  the  mail  from  complainants  being  the  only 
remedy  at  all  adequate  to  the  full  relief  to  which  the  complainants 
are  entitled.  Although  the  Postmaster  General  had  jurisdiction  over 
the  subject-matter  (assuming  the  validity  of  the  acts),  and  therefore 
it  was  his  duty,  upon  complaint  being  made,  to  decide  the  ques- 
tion of  law  whether  the  case  stated  was  within  the  statute,  yet  such 
decision,  being  a  legal  error,  does  not  bind  the  courts. 

Without  deciding,  therefore,  or  expressing  any  opinion  upon  the 
various  constitutional  objections  set  out  in  the  bill  of  complainants, 
but  simply  holding  that  the  admitted  facts  show  no  violation  of  the 
statutes  cited  above,  but  an  erroneous  order  given  by  the  Postmaster 
General  to  defendant,  which  the  courts  have  the  power  to  grant  relief 
against,  we  are  constrained  to  reverse  the  judgment  of  the  Circuit 
Court,  with  instructions  to  overrule  the  defendant's  demurrer  to  the 
amended  bill,  with  leave  to  answer,  and  to  grant  a  temporary  in- 
junction as  applied  for  by  complainants,  and  to  take  such  further 
proceedings  as  may  be  proper,  and  not  inconsistent  with  this  opinion. 
In  overruling  the  demurrer,  we  do  not  mean  to  preclude  the  de- 
fendant from  showing  on  the  trial,  if  he  can,  that  the  business  of 
complainants,  as  in  fact  conducted,  amounts  to  a  violation  of  the 
statutes  as  herein  construed. 

Judgment  reversed. 

yiv.  Justice  White  and  Mr.  Justice  McKenna,  believing  the  judg- 
ment should  be  affirmed,  dissented   from  the  foregoing  opinion. 


BATES  &  GUILD   CO.  v.   PAYNE,   Postmaster  General. 

(Supreme  Court  of  United  States,  1904.     104  U.  S.  lOG,  24  Sup.  Ct.  505, 
48  L.  Ed.  894.) 

Appeal  from  the  Court  of  Appeals  of  the  District  of  Columbia  to 
review  a  decree  which  reversed  a  decree  of  the  Supreme  Court  of 
the  District,  enjoining  the  Postmaster  General  from  enforcing  an 
order  denying  the  admission  to  the  mails  of  a  publication  of  com- 
plainant as  second-class  mail  matter,  and  dismissed  the  bill.    Affirmed. 

This  was  a  bill  to  compel  the  recognition  by  the  Postmaster  Gen- 
eral of  the  right  of  the  plaintiff  corporation  to  have  a  periodical 
publication,  known  as  Masters  in  IMusic,  received  and  transmitted 
through  the  mails  as  matter  of  the  second  class,  and  to  enjoin  de- 
fendant  from  enforcing  an  order,  theretofore  made  by  him,   deny- 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND   JUDICIAL   CONTKOL.         663 

ing  it  entry  as  such.  This  case  took  the  same  course  as  the  pre- 
ceding ones. 

Mr.  Justice  Brown  delivered  the  opinion  of  the  court. 

The  first  number  of  Masters  in  Music  was  issued  in  January, 
1903,  and  an  application  was  immediately  made  to  the  Postmaster 
General  for  its  admission  to  the  mails  as  second-class  mail  matter.  The 
application  was  denied,  and  plaintiff  immediately,  and  before  the  is- 
sue of  another  number,  filed  this  bill.  The  publication  purports  to 
be  a  "monthly  magazine,"  salable  at  20  cents  per  number,  and  to 
subscribers  at  $2  a  year.  The  first  number  is  devoted  to  the  works 
of  Mozart  and  contains  a  portrait,  a  biography  of  four  pages,  an  es- 
say of  ten  pages  upon  his  art,  and  thirty-two  pages  of  his  music. 
The  preliminary  page  contained  a  notice  to  the  effect  that  "Masters 
in  Music  will  be  unlike  any  other  musical  magazine.  Each  monthly 
issue,  complete  in  itself,  will  be  devoted  to  one  of  the  world's  great 
musicians,  giving  thirty-two  pages  of  engraved  piano  music,  which 
will  comprise  those  compositions  or  movements  that  represent  the  com- 
poser at  his  best,  with  editorial  notes  suggesting  the  proper  inter- 
pretation ;  a  beautiful  frontispiece  portrait,  a  life,  and  estimates  of 
his  genius  and  place  in  art,  chosen  from  the  writings  of  the  most 
eminent  musical  critics.  The  text  will  thus  constitute  an  interest- 
ing and  authoritative  monthly  lesson  in  musical  history;  its  selec- 
tions of  music  will  form  a  library  of  the  world's  musical  masterpieces, 
and  all  at  slight  cost.  '^  *  *  The  announcement  of  the  contents 
of  the  February  issue,  which  will  treat  of  Chopin,  will  be  found  on 
another  page." 

The  Postmaster  General  placed  his  refusal  to  allow  this  magazine 
to  be  transmitted  as  seconcl-class  mail  matter  upon  the  ground  that 
each  number  was  complete  in  itself ;  had  no  connection  with  other 
numbers  save  in  the  circumstance  that  they  all  treated  of  masters 
in  music,  and  that  these  issues  were  in  fact  sheet  music  disguised 
as  a  periodical,  and  should  be  classified  as  third-class  mail  matter. 

Conceding  the  principle  established  in  the  two  cases  just  decided 
to  be  that  the  fact  that  books  published  at  stated  intervals  and  in 
consecutive  numbers  do  not  thereby  become  periodicals,  even  though 
in  other  respects  they  conform  to  the  requirements  of  Act  March  3, 
18T9,  c.  180,  §  14,  20  Stat.  359  (U.  S.  Comp.  St.  1901,  p.  2647), 
cases  may  still  arise  where  the  classification  of  a  certain  publication 
may  be  one  of  doubt.  Such  is  this  case.  But  we  think  that,  although 
the  question  is  largely  one  of  law,  determined  by  a  comparison  of 
the  exhibit  with  the  statute,  there  is  some  discretion  left  in  the 
Postmaster  General  with  respect  to  the  classification  of  such  pub- 
lications as  mail  matter,  and  that  the  exercise  of  such  discretion 
ought  not  to  be  interfered  with  unless  the  court  be  clearly  of  opinion 
that  it  was  wrong.  The  Postmaster  General  is  charged  with  the 
duty  of  examining  these  publications   and  of  determining  to  which 


GG4  RELIEF   AGAINST   ADMINISTRATIVE    ACTION.  (Part    2 

class  of  mail  matter  they  properly  belong;  and  we  think  his  decision 
should  not  be  made  the  subject  of  judicial  investigation  in  every  case 
where  one  of  the  parties  thereto  is  dissatisfied.  The  consequence  of 
a  dift'erent  rule  would  be  that  the  court  might  be  flooded  by  appeals 
of  this  kind  to  review  the  decision  of  the  Postmaster  General  in  every 
individual  instance.  In  the  case  of  American  School  of  Magnetic 
Healing  v.  McAnnulty,  187  U.  S.  94,  104,  23  Sup.  Ct.  33,  47  L.  Ed. 
!»0,  94,  the  post-office  authorities  were  held  to  have  acted  beyond  their 
authority  in  rejecting  all  correspondence  with  the  plaintiff  upon  the 
subject  of  the  treatment  of  diseases  by  mental  action ;  but  while 
it  was  said  in  that  case  that  the  question  involved  was  a  legal  one,  it 
was  intimated  that 
Postmaster  General. 

It  has  long  been  the  settled  practice  of  this  court  in  land  cases  to 
treat  the  findings  of  the  Land  Department  upon  questions  of  fact  as 
conclusive,  although  such  proceedings  involve  to  a  certain  extent, 
the  exercise  of  judicial  power.  As  was  said  in  Burfenning  v.  Chi- 
cago, St.  P.,  M.  &  O.  R.  Co.,  163  U.  S.  321,  323,  16  Sup.  Ct.  1018, 
1019,  41  L.  Ed,  175,  176 :  "Whether,  for  instance,  a  certain  tract  is 
swamp  land  or  not,  saline  land  or  not,  mineral  land  or  not,  presents 
a  question  of  fact  not  resting  on  record,  dependent  on  oral  testi- 
mony; and  it  cannot  be  doubted  that  the  decision  of  the  Land  De- 
partment, one  way  or  the  other,  in  reference  to  these  questions,  is 
conclusive,  and  not  open  to  relitigation  in  the  courts,  except  in  those 
cases  of  fraud,  etc.,  which  permit  any  determination  to  be  re-examin- 
ed" (citing  cases).  See  also  Johnson  v.  Drew,  171  U.  S.  93,  18 
Sup.  Ct.  800,  43  L.  Ed.  88 ;  Gardner  v.  Bonestell,  180  U.  S.  362,  21 
Sup.  Ct.  399,  45  L.  Ed.  574. 

But  there  is  another  class  of  cases  in  which  the  rule  is  somewhat 
differently,  and  perhaps  more  broadly,  stated,  and  that  is,  that  where 
Congress  has  committed  to  the  head  of  a  department  certain  duties 
requiring  the  exercise  of  judgment  and  discretion,  his  action  there- 
on, whether  it  involve  questions  of  law  or  fact,  will  not  be  reviewed 
by  the  courts  unless  he  has  exceeded  his  authority  or  this  court  should 
be  of  opinion  that  his  action  was  clearly  wrong.  In  the  early  case 
of  Decatur  v.  Paulding,  14  Pet.  497,  10  L.  Ed.  599,  it  was  said  that 
the  official  duties  of  the  head  of  an  executive  department,  whether 
imposed  by  act  of  Congress  or  resolution,  are  not  mere  ministerial 
duties ;  and,  as  was  said  by  this  court  in  the  recent  case  of  United 
States  ex  rel.  Riverside  Oil  Co.  v.  Hitchcock,  190  U.  S.  324,  23  Sup. 
Ct.  702,  47  L.  Ed.  1076;  "Whether  he  decided  right  or  wrong  is' 
not  the  question.  Having  jurisdiction  to  decide  at  all,  he  had  nec- 
essarily jurisdiction,  and  it  was  his  duty  to  decide  as  he  thought  the 
law  was,  and  the  courts  have  no  power  whatever,  under  those  cir- 
cumstances, to  review  his  determination  by  mandamus  or  injunc- 
tion." 


Ch.  9)       JURISDICTION,  CONCLUSIVENESS,  AND  JUDICIAL   CONTROL.         G()5 

In  Marquez  v.  Frisbie,  101  U.  S.  473,  476,  25  L.  Ed.  800,  801, 
which  was  a  bill  in  equity  to  review  the  decision  of  the  Land  De- 
partment in  a  pre-emption  case,  Mr.  Justice  Miller  remarked :  "This 
means,  and  it  is  a  sound  principle,  that  where  there  is  a  mixed  ques- 
tion of  law  and  fact,  and  the  court  cannot  so  separate  it  as  to  see 
clearly  where  the  mistake  of  law  is,  the  decision  of  the  tribunal  to 
which  the  law  had  confided  the  matter  is  conclusive."  In  Gaines  v. 
Thompson,  7  Wall.  347,  19  L.  Ed.  63,  it  was  held  that  the  court  would 
no  more  interfere  by  injunction  than  by  mandamus  to  control  the 
action  of  the  head  of  a  department;  and  in  United  States  ex  rel. 
Dunlap  V.  Black,  128  U.  S.  40,  9  Sup.  Ct.  12,  32  L.  Ed.  354,  it  was 
said  that  the  courts  will  not  interfere  by  mandamus  with  the  execu- 
tive officers  of  the  government  in  the  exercise  of  their  ordinary  official 
duties,  even  where  those  duties  require  an  interpretation  of  the  law, 
no  appellate  power  being  given  them  for  that  purpose.  See,  also, 
United  States  €x  rel.  Redfield  v.  Windom,  137  U.  S.  636,  11  Sup. 
Ct.  197,  34  L.  Ed.  811. 

The  rule  upon  this  subject  may  be  summarized  as  follows:  That 
where  the  decision  of  questions  of  fact  is  committed  by  Congress 
to  the  judgment  and  discretion  of  the  head  of  a  department,  his  de- 
cision thereon  is  conclusive ;  and  that  even  upon  mixed  questions  of 
law  and  fact,  or  of  law  alone,  his  action  will  carry  with  it  a  strong 
presumption  of  its  correctness,  and  the  courts  will  not  ordinarily 
review  it,  although  they  may  have  the  power,  and  will  occasional!}- 
exercise  the  right  of  so  doing. 

Upon  this  principle,  and  because  we  thought  the  question  involved 
one  of  law  rather  than  of  fact,  and  one  of  great  general  importance, 
w^e  have  reviewed  the  action  of  the  Postmaster  General  in  holding 
serial  novels  to  be  books  rather  than  periodicals ;  but  it  is  not  intended 
to  intimate  that  in  every  case  hereafter  arising  the  question  whether 
a  certain  publication  shall  be  considered  a  book  or  a  periodical  shall 
be  reviewed  by  this  court.  In  such  case  the  decision  of  the  Post- 
Office  Department,  rendered  in  the  exercise  of  a  reasonable  discre- 
tion, will  be  treated  as  conclusive. 

In  the  case  of  Masters  in  Music  the  question  really  is  whether  a 
pamphlet,  complete  in  itself,  treating  of  the  works  of  a  single  master, 
with  a  greater  part  of  the  pamphlet  devoted  to  specimens  of  his 
genius,  shall  be  controlled  by  the  cover,  which  declared  that  these 
numbers  wall  be  issued  monthly,  at  a  certain  subscription  price  per 
year.  Although  a  comparison  of  the  exhibit  with  the  statute  may 
raise  only  a  question  -of  law,  the  action  of  the  Postmaster  General 
may  have  been,  to  a  certain  extent,  guided  by  extraneous  information 
obtained  by  him,  so  that  the  question  involved  would  not  be  found 
merely  a  question  of  law,  but  a  mixed  question  of  law  and  fact. 
While,  as  already  observed,  the  question  is  one  of  doubt,  we  think 
the  decision  of  the  Postmaster  General,  who  is   vested  by  Congress 


G(l()  RELIEF   AGAINST   ADMINISTRATIVE   ACTION.  (Part    3 

with  the  power  to  exercise  his  judgriient  and  discretion  in  the  matter, 
should  be  accepted  as  final. 

The  decree  of  the  Court  of  Appeals  is  therefore  affirmed. 

Mr.  Justice  Harlan,  with  whom  concurred  the  Chiei?  Justice  (dis- 
senting). 

The  Chief  Justice  and  myself  are  of  opinion  that  the  publication 
here  in  question  is  second-class  mailable  matter,  and  cannot  concur 
in  the  opinion  and  judgment  of  the  court.  Our  reasons  for  dissent- 
ing are  stated  in  the  opinion  filed  by  us  in  Houghton  v.  Payne  (just 
decided)  194  U.  S.  88,  24  Sup.  Ct.  590,  48  L.  Ed.  888. 

But  there  are  some  things  in  the  opinion  of  the  court  in  this  case 
to  which  we  shall  advert.  It  is  said  that  the  case  is  one  of  doubt. 
Now,  it  was  admitted  at  the  bar  by  the  government  that  the  publica- 
tion known  as  Masters  in  Music  w^ould  be  carried  in  the  mails  as 
second-class  matter  if  the  question  be  decided  in  accordance  with  the 
construction  placed  upon  the  statute  by  the  department  for  more  than 
sixteen  years  continuously  prior  to  the  present  ruling  of  the  depart- 
ment. We  had  supposed  it  to  be  firmly  settled  that  the  established 
practice  of  an  executive  department  charged  with  the  execution  of  a 
statute  will  be  respected  and  followed — especially  if  it  has  been 
long  continued — unless  such  practice  rests  upon  a  construction  of  the 
statute  which  is  clearly  and  obviously  wrong.  In  United  States  v. 
Philbrick,  120  U.  S.  59,  7  Sup.  Ct.  413,  30  L.  Ed.  561,  which  in- 
volved the  construction  placed  by  an  executive  department  upon  an 
act  of  Congress,  this  court  said :  "Since  it  is  not  clear  that  that  con- 
struction was  erroneous,  it  ought  not  now  to  be  overturned."  So  in 
United  States  v.  Hcaley,  IGO  U.  S.  145,  16  Sup.  Ct.  247,  40  L.  Ed. 
372,  the  court  said  that  it  would  accept  the  uniform  interpretation 
by  the  Interior  Department  of  an  act  relating  to  the  public  lands,  "as 
the  true  one,  if,  upon  examining  the  statute,  we  found  its  meaning 
to  be  at  all  doubtful  or  obscure." 

The  authorities  to  that  effect  are  numerous.  Edwards  v.  Darby, 
12  Wheat.  206,  6  L.  Ed.  603 ;  Hahn  v.  United  States,  107  U.  S.  402, 
2  Sup.  Ct.  494,  27  L.  Ed.  527 ;  United  States  v.  Graham,  110  U.  S. 
219,  3  Sup.  Ct.  582,  28  L.  Ed.  126;  Brown  v.  United  States,  113 
U.  S.  571,  5  Sup.  Ct.  648,  28  L.  Ed.  1080;  United  States  v.  Phil- 
brick,  120  U.  S.  59,  7  Sup.  Ct.  413,  30  L.  Ed.  561 ;  United  States  v. 
Johnston,  124  U.  S.  236,  8  Sup.  Ct.  495,  31  L.  Ed.  415 ;  United  States 
V.  Hill,  120  U.  S.  183,  7  Sup.  Ct.  510,  30  L.  Ed.  632 ;  United  States 
V.  Finnell,  185  U.  S.  236,  22  Sup.  Ct.  633,  46  L.  Ed.  890;  United 
States  V.  Alabama  G.  S.  R.  Co.,  142  U.  S.  615,  12  Sup.  Ct.  306,  35 
L.  Ed.  1134;  Hewitt  v.  Schultz,  180  U.  S.  139,  157,  21  Sup.  Ct. 
309,  45  L.  Ed.  463,  472.  Some  of  them  are  cited  in  the  opinion  of 
the  court  in  Houghton  v.  Payne.  The  rule  of  construction  which 
this  court  has  recognized  for  more  than  three-quarters  of  a  century 
is  now  overthrown.     For,  it  is  adjudged  that  the  practice  of  the 


Ch.  9)       JURISDICTION,  COXCLUSIVENRSS,  AND   JUDICIAL   CONTROL.  GG7 

Post-Office  Department,  covering  a  period  of  sixteen  years  and  more, 
need  not  be  regarded  in  this  case,  althougli  the  construction  of  the 
statute  in  question  is  admitted  to  be  doubtful.  We  cannot  give  our 
assent  to  this  view.*° 

4«  See  IIouKhton  v.  rn.vne.  104  T'.  S.  88.  24  Sui).  Ct.  .'".90,  48  L.  Eil.  888 
(1!)()4):  Payne  v.  United  States  ex  rel.  Railway  Publ'g  Co.,  20  App.  D.  C. 
.581     (.1002). 

See  T.  11.  Powell.  Conclusiveness  of  Administrative  Determinations  in  the 
Federal  Government,  Amei-ican  I'olitical  Science  Review.  I.  p.  .Wo. 

Cases  in  this  collection  illustrating  appeal  to  courts  in  matters  relating  to 
postal  administration:  Teal  v.  Felton,  12  How.  284.  L*]  L.  Ed.  900  (18.51); 
Teal  V.  Felton.  1  N.  Y.  537.  40  Am.  Dec.  352  (1848) ;  U.  S.  v.  Griswold.  S  Ariz. 
453.  70  Pae.  500  (1004)  :  Whitfield  v.  Lord  Le  Des))encer.  Cowp.  754  (1778) ; 
Keenan  v.  Southworth.  110  Mass.  474,  14  Am.  Rep.  013  (1872) ;  U.  S.  v.  Pear- 
son (C.  C.)  32  Fed.  300  (1887). 


INDEX 


[the  figures  refek  to  pages] 


ABUSE. 

of  power.  579  n.,  583,  G30. 
of  discretion,  70.  72. 

ADMINISTRATIVE  DETEKMIXATION, 

nature  of.  10.  lo. 

.indicial  form  of.  IG  n. 
ADMINISTRATIVE  EXECUTION,  235-2GS. 
ADMINISTRATIVE  AND  JUDICIAL  FUNCTION,  169.  170. 
ALIENS. 

see  Inuuigration. 

ANCILLARY  JUDICIAL  PROCEEDINGS  IN  AID  OF  ADMINISTRATION. 

222.  229. 

ANIMALS. 

diseased,  destruction  of.  535. 
running  at  large,  258,  340. 
APPEAL. 

to  liigher  administrative  authority,  61L  022,. G55. 
not  a  matter  of  constitutional  right.  123. 
whether  exclusive  of  other  remedy,  528  n. 
to  court,  13  n.,  77  n.,  517-528. 

list  of  eases  in  collection,  529  n. 
from  administrative  discretion,  523,  523  n.,  525  n. 
from  removal  from  office,  520. 
APPOINTMENT  TO  OFFICE, 
certiorari  to  compel.  473. 
whether  to  be  in  writing,  SO  n. 
APPRAISEMENT  OF  IMPORTS.  204.  208. 

■    conclusiveness  of  administrative  appraisement,  580. 
ARREST. 

municipal  liability  for  wrongful,  355. 
under  military  authority,  553. 
see  Habeas  Corpus. 
ASSESSMENT  OF  TAXES, 
notice  in  case  of,  115-13L 
in  case  of  increase  125,  1.30. 

question  of  law  and  jurisdiction,  550,  501,  500,  570. 
question  of  fact,  572.  576  u. 
question  of  value,  577. 
unequal,  583. 
.iudicial  nature  of,  297. 
ministerial  nature,  334. 
certiorari  to  review,  406. 

ASSESSORS, 

action  against,  297,  334. 

Fr.Adm.Law  (669) 


G70  INDEX. 

[The  figures  refer  to  pages.] 
ASSUMPSIT, 

against  collector  of  ciistonis,  31G,  319. 
ATTORXFA'  GENERAL, 

ami  quo  warranto.  .108. 

BOARDS. 

official,  mode  of  action  of,  SG-90. 

mandamus  against,  431. 
BOND. 

otlicial,  action  on,  320. 

mandamus  to  approve,  4.51. 
BUILDING  LAWS. 

enforcement  of,  24('..  2.52. 

by  pulling  down  building.  282, 

CEMETERY. 

location  of,  70,  200. 
CERTIORARI,  404-402. 

list  of  cases  in  collection,  402  n. 

discretion  in  allowance  of  writ.  503,  504,  .505. 

evidence  to  guide  discretion.  .504. 

to  review  evidence  and  control  findings  of  fact.  215,  480. 

jurisdictional  and  noujurisdictional  error,  475,  478,  479,  480. 

to  review  ordinances,  406. 

to  review  void  acts.  488,  490. 

and  quo  warranto.  409,  472. 

New  York  statute,  482. 
CHARGES, 

administrative  action  based  on,  183,  185,  ISS. 
CHIEF  EXECUTIVE, 

action  against,  284  n. 

powers  of,  4. 

CHINESE  EXCLUSION  ACTS,  010  n. 
see  Immigration. 

CIVIL  SERVICE  LAWS, 

administration  of,  certiorari,  473,  485,  487. 
appeal  to  court,  520. 

CLAIMS, 

audit  and  allowance  of,  10. 
judicial  review\  648  n. 
mandamus  to  compel  allowance,  434. 
action  for  rejecting,  438  n. 
commission  of  (Illinois),  3G5. 
court  of,  Illinois.  36(i. 

United  States.  307. 
Tucker  act,  383,  384. 

COLLECTOR  OF  CUSTOMS, 

action  against,  314,  316,  319,  325  n.,  501.  560,  570,  580. 

COLLECTOR  OF  TAXES, 
action  against,  334,  339. 

COMMITMENT, 
power  of,  217. 
for  nonpayment  of  taxes,  235  n. 

CONCT.USIVENESS  OF  ADMINISTRATIVE  DETERMINATION, 
chapter  9,  53(>667. 
notice,  141-144,  150,  154. 


INDEX.  671 

[The  figures  refer  to  pages.] 

CONDEMr^ATION  OF  FROPERTY. 

for  ])ublif  use,  action  against  government  for,  372. 

in  exercise  of  police  power,  notice,  132. 

liability  for,  306. 
CONDITIONS, 

annexed  to  adminislrative  action,  validity  of,  33-43. 
CONSENT, 

private,  as  condition  of  administrative  license  or  permit.  ?>').  30  n. 
CONSIDERATIONS. 

guiding  discretion,  70-82. 

influencing  public  acts,  33,  30  u. 
CONSTRUCTION   OF   STATUTE, 

administrative,  judicial   review   of.   O.jS,   040,   0rt7,   002. 

couclusiveuess  of,  500.  .570. 

mandamus  to  control,  4,34.  438,  442  n. 
COUNTY  COMMISSIONERS,   10.   13   n.,  95,   102.   404. 

appeal  from,  517  n. 
COURTS. 

question   of   constitutional    power   to   entertain   appeal   from   administra- 
tive  authority,   517,   520. 

question  of  power  to  act  In  aid  of  administration,  222,  229. 

CROSS-EXAMINATION, 

right  to  in   administrative  proceedings,   206. 
CUSTOMS   ADMINISTRATION. 

action    against   government,   370. 
CUSTOMS   DUTIES, 

remedy  for  unlawful  exaction,  314,  316,  319,  325  n.,  376,  501,  506,  570,  580. 

CUSTOMS    OFFICERS, 
liability  of,  533. 

and  see  Collector  of  Customs. 

DE  FACTO  OFFICERS,  111-114. 

DEFAULTERS, 

public,   summary  process  against.  235. 

DEFENSE  TO  ENFORCEMENT  PROCEEDINGS, 

list  of  cases  in  collection.  529. 

DE   JURE   AUTHORITY, 

when  required,   109,   113. 
DELEGATION    OF    LEGISLATIVE    POWER    TO    ADMINISTRATIVE    OF- 
FICER, 43,  51,  56,  60  n. 

DENTISTRY, 

practice   of,    striking  name   from   register,   28o. 
refusal  of  license,  62,   72. 

DISCOVERY, 

in  aid  of  administrative  action,  222,  229. 

DISCRETION,   61-85. 
abuse  of,  70,  72. 

fairness  of,  and  mandamus,  448.  449.  451,  4.53,  510. 
in   granting    extraordinary    legal    remedies,    500-516. 
bound  by  legislative  policy,  70,  607. 
uni'egulated,  82. 
considerations  to   guide.   70-82. 
see  Ministerial  Acts. 

DISPENSING  POWER, 

not  vested  in  chief  executive,  6  n. 


072  INDEX. 

[The  figures  refer  to  pages.] 
niSrOSSESSIOX  by  government,  SGS.  387, 
]>I STRESS    FOR   NONPAYMENT    OF   TAXES, 

notice  before,  122  n. 
DISTRESS    AVAR  RANTS,   23.-. 
DRAINAGE   COMMISSIONERS,   92.   408. 
DRAINAGE   DISTRICTS, 

(leterniining   extent,    certiorari,   408. 

<jiio  warranto,  513. 

DItAINAGE   PROCEEDINGS,    137. 
DUTIES   PAID. 

action  against  government  for,  376. 
see,   also,   Collector  of  Customs. 
DUTY   UNDER    STATUTE, 

whether  dependent  on   administrative   action,   51. 

E.TECTMENT. 

against  officers  of  government,  ,387.  39.5  n. 
lOLECTION   OFFICERS, 

actions  against.  290,  294,  296,  302. 

mandamus  against,  443,  445  n. 
EMPLOYES. 

removal  of,  179.   185,  390.  473.  485,  487.   520. 
ENFORCEMENT, 

defense  to,  list  of  cases  in  collection,  529. 
ENGLISH   LOCAL  GOVERNMENT, 

judicial  form  of  administration,' 10  n. 
ENGLISH   PUBLIC   HEALTH  ACT  1875,   29,   132  n. 
EQl'ALIZATION  OF  TAXES.  124. 

board  of,  mandamus  against,  579  u. 
EQUITY, 

jurisdiction  regarding  political   acts,  397,   399  n. 

regarding  removal   from   office.  399. 

jurisdiction  to  enforce  laws,  422  u. 
and  see  Injunctions. 
EliROR. 

jurisdictional,   see   .Jurisdiction. 

nonjurisdictional,  297. 
EVIDENCE, 

in  administrative  proceedings.   192-21(). 

refusal  to  hear,  as  ground  of  judicial  relief,  630. 
EXAMINATION, 

judicial,  in  aid  of  administrative  action,  229. 

EXAMINING    BOARDS,   03.   72, 

notice  and  hearing,  193. 

appeal,  526,  528  n. 
EXECUTIVE  DUTIES, 

mandamus  to  control,  446. 

EXECUTIVE  POWER,   4. 

FACT, 

administrative  determination  of.   conclusiveness,   542,  544,   548,   553,   571 

611,   022,   625.   030. 
questions  of,  certiorari,  479,  480,  482  n. 
FACTORY   INSPECTORS,   56. 


INDEX.  .  673 

[The  figures  refer  to  pages.] 
FEDERAL   OFFICERS, 

action  against.  314,  31G,  319,  320. 

mandamus  against,  454,  459,  462. 
FINE, 

summary  action  to  collect,  258, 
FIRE   DEPARTMENT. 

order  of,  whether  conclusive  as  to  facts,  544. 
FIRE   ESCAPES. 

duty  to  provide,   ."il. 

FISH    COMMISSIONERS, 
notice,  154. 
summary   action,  202. 

FISHING  UTENSILS, 

ludawful,   2(j2. 
FOOD. 

unwholesome  or  unfit  for  use,  132,  250,  2G2  n. 
FORFEITURE   BY   ADMINISTRATIVE   PROCESS,   258,   262. 

FRAUD   INDUCING   ADMINISTRATIVE   ACT, 

relief  against,  G32. 
FRENCH  LAW, 

regarding  liability  of  judges,  280. 

GAMING   UTENSILS, 
unlawful,  2GU. 

GENERAL   ORDER, 

when  improper,  29  n. 

GEORGIA, 

s'tatute  regarding  mandamus,  421. 
GERMAN  LAW, 

liability  of  judges,  280  n. 

suit  against  state  or  public  corporation,  381  n. 
appeal  from  administrative  action  to  courts,  517  n. 
GOVERNMENT, 

action  against,  363-395. 
for  tort,  3G8. 

to  recover  duties  paid,  376. 
for  taking  property  for  public  use,  372. 

GOVERNOR, 

powers  of,  4. 

liability  of,  284  n. 

mandamus  against,   179,  448  n. 

power  to  remove  from  office,  4,  172,  176,  179. 

conclusiveness  of  determination  of  fact,  553. 

GOVERNOR   OF  COLONY, 

action  against,  280. 

HABEAS   CORPUS,  498. 

list  of  cases  in  collection.  499  n. 

in  case  of  injunction  without  jurisdiction,  899. 

to  review  exclusion  of  aliens,  G11-G32. 
HEADS   OF  DEPARTMENTS, 

action  against,  284  n.,  397,  4.38  n. 

mandamus  against,  434,  438,  454,  046. 
HEALTH  AUTHORITIES,  12,  26,  30,  30,  40,  44,  7G. 

notice,  130,  137,  139,  150,  107. 

hearing  and  evidence,  200. 
Fr.Adm.Law — 43 


674  INDEX. 

[The  figures  refer  to  pages.] 

HEALTH  AUTHORITIES— Coiitinuod, 

liability,  300,  313  n.,  535. 

action  to  restrain,  41G  n. 

list  of  cases  in  collection    regarding  jiulicial  review   of  acts   of,  548  n. 
HEALTH   LEGISLATION, 

historj^  regarding  notice,  145  n. 
HIGHWAY, 

obstruction  of,  243,  244. 

HIGHWAY   OFFICERvS, 

action  against.  .303.  .337. 

nature  of  duties,  306  n. 
HIGHWAY   PROCEEDINGS.    90,    93,    95,   99,    102. 

ILLINOIS, 

acts  regarding  suits   against  state,   303-067. 
IMMIGRATION. 

exclusion  of  aliens,  Oil. 

deportation,   016  n. 

conclusive  determination  of  fact.  Oil. 

statute  excluding  judicial  review.  Old  n.,   617. 

alienage,  as  question  of  law,   618. 

as  question  of  fact,  022,  625,  030. 
IMPLIED  CONTRACT, 

municipal  liability  on,  ,359.  302  n. 

liability  of  government  on,  372,  376. 
IMPORTATION  OF  GOODS,  00  n.,  159  n. 
IMPORTS, 

appraisement,  204,  208,  580. 

classification,    .582. 

destruction  of.  202  n. 
IMPROVEMENTS, 

requirement  of,  20,  30. 

notice,  134,  136,  145. 

INEQUALITY   OF  ADMINISTRATION, 

as  ground  of  judicial  relief,   583. 
INFERIOR   OFFICER. 

whether  protected  by  process  or  order,  .332,  334,  337,  339. 
INFORMATION, 

power  to  require,  217-234. 
INJUNCTIONS,   396-419. 

list  of  cases,  423  u. 

to  restrain  political  acts,  397,  399  n. 

to  restrain  removal  from  office,  399. 

to  restrain  taxation  proceedings,  417,  419  n. 

against  exercise  of  police  power,  408,  413,  416  n. 

against  health  authorities,  410  n. 

to  restrain  violation  of  laws,  422  n. 

against  carrying  out  order  of  superior  officer,  057. 
INSPECTION  OFFICERS, 

liability  of,  287,  312. 

jurisdictional  limitations,  521,  533  n, 
INSURANCE   COMMISSIONER, 

question  of  judicial  review  of  acts  of,  602,  604,  607. 
INSURANCE  COMPANIES, 

admission  to  do  business,  002,  004,  007. 
INTERSTATE  COMMERCE  ACT,   25  n.,  599  n. 


INDEX.  675 

[The  figures  refer  to  pages.] 

INTERSTATE    COMMERCE   COMMISSION,    13,   18,   20. 
proceedings  before,   10  u. 
power  to  call  on  court  for  aid,  222. 
provisions  of  law  regarding  i-eview  of  orders,  009  n. 

INTOXICATING  LIQUORS,  38,  35,  Gl,  07. 
license,  448,   449,  451. 

notice  and  hearing,  161,  164,  183,  192,  196.  198. 
sunnnary  action,  243  u.,  249. 
mandamus,  433. 

to  compel  enforcement  of  law,  440. 
certiorari,  484.  490. 
appeal,  523,  525  n. 
list  of  cases  in  collection  regarding  judicial  review,  549  n. 

JUDGES, 

actions  against,  269. 

foreign  law,  280  n. 

administrative  powers  vested  in,  231. 
JUDGMENTS, 

in  court  of  claims,  .385. 
JUDICIAL  ACTS, 

and  certiorari,  406,  470,  473. 

JUDICIAL  FORM  OF  ADMINISTRATIVE  ACTION,  13,  16  n. 

JUDICIAL    POWER    AND    ADMINISTRATIVE    AUTHORITIES,    217,    222. 
229. 

JURISDICTION. 

for  purpose  of  judicial  liability,  269. 

for  purpose  of  administrative  liability  and  for  purpose  of  review,  27:'.. 

274,  306  n. 
excess  of  in  collection  of  revenue,  556,  561. 
quo  warranto,  492,  495. 

JURISDICTIONAL  FACTS, 

erroneous  finding  as  to,  534,  535  n.,  535,  548,  553,  556,  561,  618,  622,  625, 

630. 
recital  of,  92,  93,  101,  104. 

JURISDICTIONAL  PREREQUISITES,  91,  93,  95,  144  n. 
JURY  TRIAL, 

not  required  in  administrative  proceedings,  192,  212. 
JUSTICE  OF  PEACE,  16  n. 

liability,  276. 

LEGISLATIVE  CREATION, 

rights  of,  administrative  control  over,  530. 
LEGISLATIVE   DETERMINATION, 

notice,  154. 
LIABILITY, 

official,  142,  269-345. 

list  of  cases  in  collection,  845  n. 

LICENSES,  ,    ^„  ^^    „    ^^ 

grant  or  revocation  of,  33,  35,  36,  40,  61,  62,  67,    .0  u.,   .2,    a,  SO. 
notice   160-172. 
hearing.  192-202. 
action  for  refusal,  284. 
for  revocation,  301. 
mandamus  to  compel  issue,  432,  448,  449,  451. 
certiorari  against  revocation,  484,  490. 
appeal  from  refusal,  523,  525  n. 
list  of  cases  in  collection  regarding  judicial  review,  549  n. 


076  INDEX. 

[The  figures  refer  to  pages.] 

LIQUORS, 

see  Intoxicating  Liquors. 

MAJORITY, 

acts  of,  binding,  87,  89. 
MALICE, 

as  affecting  liability,  271,  283,  290  n. 
MANDAMUS,  61,  G2,  6G,  G7,   72,  420-4G3. 

discretion  in  allowance  of  writ,  500. 

absence  of  other  efficacious  remedy,  438,  656. 

against  governor,  179,  44S  n. 

against  heads  of  departments,  434,  438,  454,  G46. 

against  board  or  corporation,  431. 

to  enforce  executive  duties,  446. 

when  futile,  443. 

nature  and  form  of  proceeding,  422,  425. 

early  practice,  423. 

entitling  of  proceeding,  422. 

Interest  of  relator-,  428,  429. 

pleadings,  425,  427. 

requirements  of  petition,  425. 

return,  427. 

remedy  for  refusal  to  obey,  432,  433  n. 

list  of  cases  in  collection,  4G3  n. 
and  see  Ministerial  Acts. 
MARSHAL, 

United  States,  6. 
MARTIAL  LAW, 

proclamation  of,   553. 

MEDICAL  BOARDS, 

findings  of,  542. 
MEDICAL  LICENSE, 

grant  or  revocation,  notice,  and  hearing,  165,  193. 

appeal,  526. 
MILITARY   AUTHORITY. 

judicial  review  of  acts  of,  list  of  cases  in  collection,  556  n. 
MILITARY  NECESSITY, 

justification  by,  283. 
MILITARY  OFFICER, 

liability,  332. 
MILITARY   ORDERS, 

conclusiveness  of  finding  of  facts,  548,  552  n. 
MILK, 

sale  of,  40. 

MILK  DEALER'S  LICENSE, 
revocation,  notice,   167. 

MINISTERIAL  AND   DISCRETIONARY  ACTS, 

mandamus,  433,  434,  468,  443  n.,  448,  449,  449  n.,  451,  453,  655. 

notice,  161. 
MINISTERIAL  AND  JUDICIAL  ACTION,  286. 
MONEY   HAD   AND   RECEIVED, 

action  for,  against  municipal  corporation,  359,  362  n. 

by  exacting  duties  at  unlawful  rate,  316,  319. 
MULTIPLICITY   OF   SUITS. 

ground  for  injunction,  408,  419,  587. 
MUNICIPAL  CORPORATIONS, 

liability,  346-362. 


INDEX.  677 

[The  figures  refer  to  pages.] 
NAVIGATION, 

cominissioner  of,  50(5,  570. 
NEBRASKA, 

statute  allowing  review  of  administrative  errors,  517  n. 
NEGLECT  OF  OFFICIAL  DUTY, 

liability,   307  u.,  346  n. 
NEW  YORK, 

city  law,  422  n. 

railroad  law,  10  n. 

city  of,  charter,  §  119G,  358. 
NONFEASANCE  AND  MISFEASANCE,  290. 
NOTICE, 

requirement  of,  17,  11.5-101,  310. 

whether  implied,  126  n. 

evidence  of,  93. 

sufficiency  of,  183-191. 

history  regarding,  in  health  legislation,  145  n. 
NUISANCES, 

abatement  of,  16,  26,  93. 

notice,  134,  137,  139,  150. 

hearing  and  evidence,  210,  212. 

summary,  243-257. 

maintained  by  city,  350. 

OATH, 

power  of  administrative  officer  to  administer,  201  n.,  217  n. 
of  partj',  when  decisive  in  administrative  proceeding,  204  n. 
OFFICE, 

nature  of,  408  n. 

removal  from,   see  Removal  from   Office. 

OFFICERS, 

actions  against,  269-345. 
list  of  cases,  345  n. 
OFFICIAL  BOND, 
liability  on,  329. 
mandamus  to  approve,  451. 

ORDINANCES, 

action  to  restrain  enforcement  of,  408,  413,  416  n. 

certiorari  to  review,  466. 

tested  by  quo  warranto.  497  n. 

injury  through  nonenfovcement  of,  346,  350. 

PENSIONS, 

grant  or  refusal  of,  judicial  relief  in  matter  of,  438,  G4S. 
PERMIT, 

grant  or  refusal  of,  76. 
PERSON. 

summary    action   against,    257  n. 

PETITION  OF  RIGHT,  390. 

for  recovery  of  lands,  396  n. 
PLACE  OF  OFFICIAL  ACTION,  86  n. 

POLICE  OFFICERS, 

removal  of,  178,  185,  190. 

POLICE  POWER. 
notice,  132-172. 
municipal  liability  in  exercise  of,  355,  356. 


678  INDEX. 

[The  figures  refer  to  pages.] 
POLITICAL  ACTS, 

action  to  restrain,  397,  399  n. 

POSTAL   ADMIXISTRATIOX, 

judicial  review  of  acts  of,  (laT,  G02,  GOT  n. 
POSTAL    SERVICE, 

nature  of,  343. 
POSTMASTER. 

action  against,  326,  328  n.,  341,  344. 

mandamus  against,  402. 

injunction  against,  057. 
POUND. 

public,  summary  dealing  witii  animals  in,  2.!)8. 
PRACTITIONER, 

striking  name  off  register,  285. 
PRESIDENT, 

liability  of.  284. 

conclusiveness  of  determination  of  fact.  548. 

order  to  inferior  oflicer,  332. 

no  dispensing  power,  621. 

no  right  of  appeal  to,  from  head  of  department,  517  n. 
PRESUMPTION, 

of  regularity  of  official  action,  89,  90,  100 
PRIVATE  KNOWLEDGE, 

how  far  a  valid  ground  of  administrative  determination,  196,  200,  214, 
215,  215  n. 

PROCESS, 

as  protection  to  inferior  officer,  339. 

PROHIBITION,  500. 

PROOF, 

of  official  action,  91-104, 
of  official  character,  105-111. 

PROTECTION, 

by  process  from  liability,  339. 

by  order  of  superior  officer,  332,  334,  337. 

PROTECTION  ACTS, 

for  public  officers,  284  n.,  533. 

PUBLIC   LANDS. 

judicial  review  in  matter  of  land  grants,  632,  638,  645,  645. 

PUBLIC  MONEYS, 

collection  of,  remedies  against,  235,  242  n. 
see  Claims. 

QUALIFICATION, 

lack  of,  as  avoiding  official  acts,  109. 

QUAJIANTTNE, 

municipal  liability  for,  356. 

QUASI-JUDICIAL  DUTIES, 
highway  officer,  306  n. 

QUESTION, 

of  law,  administrative  decision,  judicial  review  of,  638,  646,  653,  657,  662. 
of  fact,  see  Fact. 

QUORUM, 

presence  of,  88  n.,  90  n. 


INDEX.  679 

[The  figures  refer  to  pages.! 

QUO  WARRANTO,  492,  495,  5aS.  510. 
list  of  cases  in  collection,  497  n. 
discretion  in  allowance  of.  507,  508.  510. 
to  review  illegal  action,  495. 
to  test  validit.v  of  ordinances,  497  n. 
to  test  extension  of  drainage  district,  513. 

RAILROAD  COMMISSIONS,   G.  9  n.,   1,3,   18,  20. 

see  Interstate  Commerce  Commission. 
RAILROAD. 

taxation  of   (notice),  124. 

RAI'LROAD   RATES. 

regulation  of.  18.  20. 

.iudicial  review,  594,  597,  601  n. 
REASONABLENESS. 

of  railroad  rates,  .iudicial  review,  594,   597,  001   n. 
RECEIVER   OF  TAXES. 

warrant  issued  by,  339.  341  n. 
RECITAL. 

of  jurisdictional  facts.  02.  93.  101.  104. 
RECORD  EVIDENCE.  93.   95,  99  n.,   100,  101. 

REGULATION, 

administrative,    power   of,   18.    20,   43-GO. 
REMOVAL   FROM   OFFICE.   4,   CO. 

notice.  172-183.  185-191. 

hearing  and   evidence,  214.  215. 

action  in   equity  to  restrain,  399. 

certiorari.  480.  485,  487. 

quo   warranto,   516   n. 
REPUTABILITY   OF   INSTITUTION,   63,   72. 
REPUTATION, 

of  official  character  as  prima   facie  evidence,   105-109. 
RESCISSION   OF   ADMINISTRATIVE  DECISION,   638,   645. 

by  action  in  equity,  632. 

RESPONDEAT  SUPERIOR,  341.  -344,  345  n. 
REVOCATION  OF  LICENSES,  3G,  40,  38  n.,  39  n. 

notice,  160-172,  183. 

hearing.   192.  196.  198. 

certiorari,  4S4,  490. 

list  of  cases  regarding  judicial  review,  549  n. 
see  Licenses. 

SCHOOL, 

authorities,  43. 

exclusion  from,  495. 
SEWERiS, 

commissioners  of,  and  certiorari,  464,  465,  466  n. 

municipal  liability,  347,  350  n. 
SEPARATION  OF  POWERS,  9n. 

SPECIFIC  PERFORMANCE. 

action  against  government  for,  382. 
STATE, 

action  against,  363-367,  376  n.,  395  n. 

STATE  COURTS, 

action  against  federal  officers,  326,  328  n. 


G80  INDEX. 

[The  figures  refer  to  pages.] 
STATE'S  ATTORNEY, 

aud  quo  warranto,  510,  51G. 
SWE AI5 IN(;    WITNESSES, 

poAver  of,  211  n.,  217  ii. 
STATUTE. 

whether  operative  without  ailniinislrative  actioB,   51. 
see  Construction. 
SUBORDINATE   OFFICER, 

action  against,  332,  334,  337,  339. 
SUIT, 

nature  of,  12. 

SUMMARY  ABATEMENT  OF  NUISANCES,  24.3-257. 
history,  243  n.,  245  n. 

SUMMARY   ACTION,   235-2GS,   30G,   313   n. 
notice,  252. 

SUPERIOR  OFFICER, 

liability  for  acts  of  subordinate,  341,  344. 

order  of,  whether  protection  to  subordinate,  332,  334,  337,  339. 

TAXABLE  PROPERTY, 

amount  of,  finding  as  to.  572,  .576  n. 
conclusiveness  of   valuation,  577,   5S0,   5S2,   583. 
TAXATION, 

proceedings.  93,  107,  115-131. 

notice  and  hearing,  575  n. 

hearing  aud  evidence,  202-209. 

power  to  require  information,  217. 

action  against  officers.  297,  301  n.,  334,  339. 

injunction  against,  417,  419  n. 

mandamus  to   compel,  433. 

certiorari,  483  n.,  488,  503. 

.jurisdictional  and  nonjurisdictional   facts,   556,   561,   572,   576  n. 

judicial   review,  55G-593. 

list  of  cases  in  collection  regarding,  593  n. 

TAXPAYERS'   ACTIONS. 

to  restrain  municipal   expenditure,  422  n. 
TEA, 

importation  of,  60  n. 

TENEMENT  HOUSE  LEGISLATION,  145. 

TESTIMONY, 

compelling  of,  217,  222. 

TORTS, 

nonliability  of   sovereign   for,  3GS,  372  n. 

TRESPASS, 

municipal   liability,  348. 
liability  of  officer,  303. 

TRIAL  BY  JURY, 

not  required  in  administrative  proceedings,   192,  210,  212. 

TROVER, 

for  detention  of  imports,  314. 

UNEQUAL  VALUATION, 

judicial  relief  against,  583. 

UNITED   STATES   COURTS, 
mandamus  in,  454,  459,  462. 


INDEX.  681 

[The  figures  refer  to  pages.] 

VACCINATION, 

compulsory,  43,  51  n. 
VALUATION  OF  TAXABLE   PROPERTY. 

question  of  judicial  review,  577.  080,  581,  5S3. 
VOTE. 

rejection,  liability  for,  290,  294,  29G,  302. 

WATERS. 

control   over,  see  Fish   Commissioners. 

WITNESSES. 

contumacious,  before  administrative  authorities,  217,  222. 

examination  of.  on  customs  appraisal,   204,  20S. 

right    to,   on    administrative  hearing,    202,   204.    204   n..    210.    212. 


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